Wynyard v Bremner
[2020] NZHC 1589
•6 July 2020
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, in 2012 and 2013, the relationship between Mrs Wynyard and Ms Bremner soured. There were arguments about how the company should be run and financial matters. Elaboration is unnecessary.
[7] In April 2013, Ms Bremner told Mrs Wynyard she wanted to leave the company. After some discussion, Mrs Wynyard told Ms Bremner they could ask Century 21 to be released from the franchise agreement due to their relationship breakdown.
[8] On 30 June 2013, Ms Bremner packed some of her office belongings. She also deleted personal email from her computer and old files.
[9] Through July 2013, Ms Bremner continued with the company. Things were unpleasant. Lawyers became involved to negotiate terms of Ms Bremner’s departure.
[10] On 8 August 2013, Mrs Wynyard removed Ms Bremner from the office roster. Ms Bremner stopped going to the office. On 29 August, Mrs Wynyard wrote about Ms Bremner to the Real Estate Agents Authority, the disciplinary body for real estate agents.4 Mrs Wynyard expressed concern Ms Bremner was working without supervision and had removed “company related business documents from the computer”.
[11] In September 2013, Mrs Wynyard deleted Ms Bremner’s email account with Century 21.
[12] Between 5 September and 20 October 2013, Ms Bremner travelled overseas. Clients contacted her. Ms Bremner referred them to Mrs Wynyard and the company.
3 Century 21.
4 The Authority.
[13] Sometime after her return, Mark Macky of Mackys Real Estate Ltd5 approached Ms Bremner with an employment offer.6 Mackys traded as Bayleys in the North.7 It too is in Russell. On 9 December 2013, Ms Bremner resigned as a director of the company. On 18 December, she began work as an employee at Bayleys.
[14] Between January 2014 and May 2019, Ms Bremner sold 16 properties. Bayleys had an agency agreement for each. The sales attracted commissions of
$457,070.
[15] Mrs Wynyard and the company claim these commissions. So too the trustees of the Wynyard Family Trust,8 which holds shares in the company.
[16] The remaining parties are Darren Sanders and Ms Bremner and Mr Sanders in their capacity as trustees of the Sanders Family Trust. Mr Sanders is Ms Bremner’s husband. The Sanders Family Trust owns 48 percent of the company’s shares; Mr Sanders owns one percent.
[17] This leaves two sequences. On 17 September 2014, the Complaints Assessment Committee of the Authority concluded there was no evidence Ms Bremner had done anything wrong. In December 2014, Mrs Wynyard instructed Baycorp Ms Bremner owed the company $31,855.89. Ms Bremner protested. Baycorp later abandoned the claim.
Causes of action
[18] There are two causes of action.9 The second alleges Ms Bremner breached her fiduciary obligations to the company as a director or former director. The first is under s 174 of the Companies Act 1993. It contends Ms Bremner conducted the affairs of the company in a manner oppressive, unfairly discriminatory, or unfairly prejudicial
5 Mackys.
6 Ms Bremner was also approached by another real estate agency.
7 Bayleys.
8 The trust.
9 Two additional causes of action were abandoned during closing arguments: conversion and inducing breach of contract.
to the plaintiffs as shareholders. Central to both is the contention Ms Bremner removed and exploited company files and other information. I call this the core contention.
The core contention
[19]This comprises two paragraphs of the statement of claim:
21 On 30 June 2013 Ms Bremner copied or removed:
21.1The information held by the Company about its clients, the clients’ agency agreements with the Company and the clients’ property information in both electronic and paper form from the Company’s office in Russell;
21.2The information held by the Company about prospective buyers for the properties listed by its clients in both electronic and digital form.
22 Ms Bremner then incited the Company’s clients to terminate their agency agreements with the Company. Ms Bremner then proceeded to provide real estate services for the clients in question including introducing buyers and sellers and marketing the properties resulting in sales. Ms Bremner did this either for her own benefit or under the auspices of MACKYS REAL ESTATE LIMITED trading as “BAYLEYS PAIHIA”.
Related evidence is confined.
[20] Mrs Wynyard’s husband says on 30 June 2013, he saw Ms Bremner load company files into her car. This concerned him as he knew Ms Bremner was leaving the company. Mr Wynyard says Mrs Wynyard recorded the event in a diary.
[21] Mrs Wynyard says on 3 July 2013, she saw Ms Bremner copy “accounts and financial information”. On 27 July, Mrs Wynyard says Ms Bremner took property information sheets (generated when a property is listed, and containing the asking price, specifications and other property information). On 31 July, she saw Ms Bremner come into the office at 4.45 pm and leave “after copying the counter-book”. The counter-book was kept at reception and signed by some who attended the office, including clients. Mrs Wynyard says on 8 August, Ms Bremner
“copied some documents [while] throwing out barbs constantly”. These contentions are not in the statement of claim. They should be.10
[22] Between January 2014 and May 2019, Ms Bremner sold 16 properties. Mrs Wynyard says the company had an agency agreement for each when Ms Bremner left.
[23] Ms Bremner acknowledges removing personal property from the office and deleting personal email from the company computer. These included email in relation to her wedding, online shopping, and correspondence with friends. Ms Bremner says she also deleted “old files” from the company computer. Ms Bremner says these “had nothing to do with current work or prospective clients”. Ms Bremner denies taking or copying company files and information. She describes these allegations as “lies”.
[24] Ms Bremner explains how she came to sell the properties on behalf of Bayleys, including contact between her and each vendor. Her related account was not challenged.11 A summary of this evidence comprises Schedule I. In short, Ms Bremner had a pre-existing relationship with four vendors; another two were good friends; four vendors contacted Ms Bremner; and one was introduced by a neighbour. Ms Bremner contacted three vendors by publicly available means: the Companies Office; a Trade Me listing; and by asking a caretaker for the owner’s details. Ms Bremner approached the two remaining vendors in February 2014. Both properties were publicly advertised for sale at the time.
Principle
[25] Principle is clear. Directors owe their companies fiduciary duties.12 A director must act (honestly) in the best interests of their company. Directors may not profit from their company or allow their interests and the company’s to conflict. Directors may not take for themselves a business opportunity the company is pursuing or may pursue. A director may not take confidential information from the company or exploit
10 High Court Rules 2016, r 5.26.
11 Evidence Act 2006, s 92.
12 Regal (Hastings) Ltd v Gulliver [1942] 1 All ER 378 (HL).
that information even when she or he has resigned.13 However, absent a restraint of trade, a former director may compete with the company, and do so using general knowledge and skills—even quite specialised—arising from their directorship. Otherwise, commerce would be injured. So too the public interest.14
Analysis
[26] The Wynyards’ evidence about Ms Bremner taking company files on 30 June 2013 is problematical. Mr Wynyard acknowledged he did nothing when he allegedly saw Ms Bremner load the files into her car, even though he knew she was leaving. Mr Wynyard said Mrs Wynyard recorded the event in her diary. Mrs Wynyard made no mention of a diary in evidence-in-chief. No diary was produced in evidence. Mrs Wynyard said the diary was still at home and had not been produced as she believed it inadmissible.15
[27] Mrs Wynyard and Ms Bremner corresponded between 2 July 2013 and 26 February 2014 in relation to Ms Bremner’s departure, about which more below. The allegation was not voiced.
[28] On 29 August 2013, Mrs Wynyard wrote to the Authority about Ms Bremner. The allegation was not voiced in this or related correspondence either. It was first raised 2018, by this claim.
[29] Mrs Wynyard’s evidence about Ms Bremner’s alleged copying of company documents in July and August 2013 is equally problematical. As observed, Mrs Wynyard and Ms Bremner corresponded between 2 July 2013 and 26 February 2014, including through lawyers. Content is instructive.
[30] On 2 and 3 July 2013, Mrs Wynyard and Ms Bremner exchanged email about outstanding GST. On 4 July, Mrs Wynyard wrote Ms Bremner a four-page letter covering many topics, including outstanding GST and other payments. Mrs Wynyard
13 Faccenda Chicken Limited v Fowler [1986] 1 All ER 617 (CA).
14 Holden v Architectural Finishes Ltd (1996) 7 NZCLC 260,976 (HC).
15 On behalf of the plaintiffs, Mr Holgate said the diary existed. I can act only on evidence given or produced in the courtroom.
said Ms Bremner had “mistakenly deleted not only your inbox and sent items but also the client individual folders”. Mrs Wynyard asked Ms Bremner to restore the deleted information. On 16 July, Ms Bremner’s lawyer wrote to Mrs Wynyard. The letter suggested the women part ways 31 July 2013. It raised the prospect of the company being in arrears in relation to GST.
[31] On 22 July Mrs Wynyard replied. Her two-and-a-half-page letter covered these and other topics. Mrs Wynyard again said Ms Bremner had deleted digital files, causing a “disruption to the business”. Mrs Wynyard asked for their restoration, observing “the IT person has tried to retrieve the files. They are not on the backup as stated by Irene”. Mrs Wynyard also raised the prospect of a restraint of trade:
As Irene has stated she does not need real estate in her life as she has other income and is financially secure, I am sure Irene will not object to what is affectively a restraint of trade within a 30 km radius for a period of only one year from her release from the business as from July 31st 2013.
[32] On 29 July, Ms Bremner’s lawyer contested restraint of trade, noting the proposed agreement contained no payment for goodwill.
[33] By 13 August, Mrs Wynyard had retained lawyers too. They wrote to Ms Bremner that day, noting “general agreement” with a draft separation deed. The three-page letter addressed several matters, including Ms Bremner’s alleged deletion of email and client folders. Concern was expressed “the deleted files are not recoverable on any back up system”, and Ms Bremner might have breached the franchise agreement with Century 21 by deleting digital information. Concern was also expressed Ms Bremner had “cleaned out her desk” during the weekend of 29 and 30 June 2013. However, as with the earlier correspondence, Mrs Wynyard said nothing about Ms Bremner copying company documents.
[34]Ms Bremner’s lawyer replied 22 August. She said:
Company documents
Once again my client maintains that: -
a) She cleaned out her desk and removed a very small box of personal items.
b) The incoming and sent emails were her personal emails and not related to the business.
c) My client emphatically repeats that she has not deleted client folders under her address. In the circumstances I am not able to take this matter any further.
[35] On 26 August 2013, Mrs Wynyard’s lawyers agreed it was “difficult” to take this subject further. They added:
... However, our client can provide particular examples of information that was deleted or removed. For example, our client refers to the Barwell file, a matter in relation to which we are advised involves a property with serious water issues. Nothing remains on record apart from a brief transaction report. This is clearly not a personal matter to Irene. Century 21 will have difficulty adequately responding to any questions regarding the transaction in future given the information that was removed.
We can only emphasise that if it transpires Irene has removed documents or files (in electronic form or otherwise) that relate to Century 21 rather than her own personal matters, then this will be a likely breach of the franchise agreement and possibly misuse of confidential information. All rights are expressly reserved.
[36] This letter appears to encompass possible removal of paper documents. However, it does not refer to documents being copied even though Mrs Wynyard allegedly saw Ms Bremner repeatedly do so only weeks earlier.
[37] As observed, on 29 August 2013, Mrs Wynyard wrote to the Authority about Ms Bremner. Mrs Wynyard said nothing about Ms Bremner copying documents. Mrs Wynyard’s later correspondence with the Authority is silent on this topic too.
[38] On 19 November 2013, Mrs Wynyard’s lawyers said Mrs Wynyard would not agree to preparation of accounts, citing instances of allegedly unreasonable behaviour by Ms Bremner. Copying of documents was not cited.
[39] On 10 February 2014, Ms Bremner’s lawyers offered to sell the defendants’ shares to the plaintiffs for $1. Mrs Wynyard’s lawyers replied 25 February, asserting Ms Bremner owed the company more than $14,000.16 Copying of documents was not raised.
16 On 26 February, Ms Bremner’s lawyers said the debts were the company’s.
[40] In short, Mrs Wynyard said nothing about Ms Bremner copying company documents—let alone Ms Bremner doing so while Mrs Wynyard watched—in contemporaneous correspondence. Mrs Wynyard said she did not raise the issue as she had “faith” Ms Bremner would return the documents. The explanation sits uneasily with Mrs Wynyard’s documented requests Ms Bremner restore deleted digital information. It also sits uneasily with Mrs Wynyard’s ventilation of other concerns about Ms Bremner’s departure, and her proposal Ms Bremner not compete. So, as with the allegation Ms Bremner removed company files, this remained latent until this claim was filed in May 2018. The same is true of Mrs Wynyard’s contention Ms Bremner removed property information sheets 27 July 2013.
[41] Mrs Wynyard’s complaint Ms Bremner gave real estate advice without supervision appears over-egged. Mrs Wynyard relies on two short email chains. In mid-September 2013, Ms Bremner corresponded with Justin Frizelle. Mr Frizelle, who was overseas, told Ms Bremner he was happy to settle absent title. Ms Bremner asked for confirmation of this, said she was removing herself as a director, then said if the sale had “not concluded before my situation is resolved you will need to contact Dianne Wynyard”.
[42] A month earlier, Ms Bremner corresponded with Gerard Larroumets. Mrs Wynyard notes—correctly—this chain includes Ms Bremner inviting Mr Larroumets to contact her privately, not at her Century 21 email address. However, Ms Bremner says Mr Larroumets was also an old friend whom she was helping in relation to an overdue power account. The chain supports this, for, Ms Bremner refers to contacting the power company but it not being willing to deal with her, and to Mr Larroumet’s power being disconnected “if you do not make contact with them”. The email concludes with Ms Bremner telling Mr Larroumets she is leaving the company and will be in Paris in September.
[43] Mrs Wynyard contends Ms Bremner’s deletion of company email and other information caused disruption. Her evidence on this topic is unsatisfactory. On 20 January 2014, Andrew Eales, a senior investigator at the Authority, wrote to Ms Bremner. He said Mrs Wynyard had told him “the company records and emails allegedly deleted have been recovered from the Century 21 … main computer system”.
Ms Taefi raised this with Mrs Wynyard in cross-examination on behalf of the defendants. Mrs Wynyard said she did not receive the recovered files as Century 21 would not release them to her unless she paid Century 21 $7,000. Ms Taefi then invited Mrs Wynyard’s attention to an email she sent Mr Eales on 28 January 2014, hence eight days later, in which Mrs Wynyard offered him “the data Century 21 was able to recover”. The same email refers to $7,000 as the cost of a forensic report to identify when the data was removed, not an amount payable to Century 21 for Mrs Wynyard to have the data. Mrs Wynyard acknowledged the email did not appear to support her account.
[44] Ms Taefi also asked Mrs Wynyard to comment on her email to Mr Eales the next day, in which she explained how he could access “the content of the files deleted by Irene”, including “the emails”. Mrs Wynyard then said she had received “some information” from Century 21, but not what she needed. The plaintiffs could have adduced the deleted information Mrs Wynyard said remained with Century 21. They did not. On 21 December 2018, the plaintiffs sought third party discovery against Century 21. The defendants did not oppose the application. On 18 March 2020, Associate Judge Bell granted the application.
[45] Ms Bremner’s evidence was clear and consistent. She impressed as capable and accurate. Ms Bremner said if she had taken company files the company would have struggled to operate, as most important information was paper-based, not digital. The logic is difficult to assail. Ms Bremner has always accepted she removed her belongings from the office and deleted personal email and old files. Ms Bremner explained how she contacted all vendors independently of anything allegedly taken or copied. This evidence was not challenged.17 Indeed, Ms Bremner was not asked a single question on this topic in cross-examination.
[46] For these reasons, I am not satisfied the core contention is established to the civil standard. I go further. I am 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. Ms Bremner went overseas for several weeks
17 Evidence Act 2006, s 92.
after leaving the company, albeit before resigning her directorship. This is not a case of immediate, post-departure competition, still less one involving exploitation of confidential company information. Both causes of action fail on the evidence.18
[47] For completeness, the first cause of action could not succeed even if the core contention had been established. Section 174(1) of the Companies Act 1993 provides:
174 Prejudiced shareholders
(1) A shareholder or former shareholder of a company, or any other entitled person, who considers that the affairs of a company have been, or are being, or are likely to be, conducted in a manner that is, or any act or acts of the company have been, or are, or are likely to be, oppressive, unfairly discriminatory, or unfairly prejudicial to him or her in that capacity or in any other capacity, may apply to the court for an order under this section.
[48] As will be apparent, s 174 provides a mechanism for a shareholder of a company to obtain relief from a Court when the affairs of a company or the acts of the company have been, are being, or are likely to be conducted in a manner that is oppressive, unfairly discriminatory, or unfairly prejudicial to the shareholder. Relief is not available outside these parameters. So, the conduct complained of must concern the affairs of the company or constitute an act or acts of the company.
[49] In MacAlisters Apparel Ltd v Ishizuka,19 the defendants caused another company to discontinue placing orders with MacAlisters Apparel. In other words, the defendants diverted business from the plaintiff company. Fraser J held the defendants’ actions did not constitute conduct in the affairs of the plaintiff company. Rather, the conduct involved the affairs of the other company interfering with the business of MacAlisters Apparel.
18 The defendants contended the company never had agency agreements in relation to the commissions sought, hence Ms Bremner had not interfered with the company’s clients, nor had it suffered loss. The defendants noted Mrs Wynyard did not produce agency agreements in relation to all 16 properties, and those she did produce were between clients and Jan Madden Real Estate Ltd, or clients and Countrywide Real Estate Ltd. None involved the company. The defendants contended the company could not claim a commission as to do so would contravene s 126 of the Real Estate Act 2008. That section provides a real estate agent is not entitled to a commission unless she or he has a signed agency agreement, in writing. The plaintiffs responded Jan Madden Real Estate Ltd and Countrywide Real Estate Ltd were agents for the company, and s 126 does not prohibit this. It is unnecessary to address these arguments given my conclusions.
19 MacAlisters Apparel Ltd v Ishizuka HC Christchurch CP29/96, 29 August 1997.
[50] In Plumpton v Terry,20 the plaintiffs alleged the defendants planned to steal its business. The plaintiffs also alleged the defendants prejudiced the company by promoting a rival. Van Bohemen J held the alleged conduct fell outside s 174. Again, the alleged conduct did not involve the affairs of the company or its acts.
[51] Had Ms Bremner copied and removed confidential information, then used the information while employed by a rival, this would not engage s 174. Such behaviour would not involve the affairs of the company or constitute an act of the company.
Admissibility rulings and other matters
[52] I have referred to correspondence between Mrs Wynyard and Ms Bremner from 2 July 2013. Mr Holgate contended most of this correspondence should not be admitted.21 He contended it was privileged by s 57 of the Evidence Act 2006. It reads:
57 Privilege for settlement negotiations, mediation, or plea discussions
(1) A person who is a party to, or a mediator in, a dispute of a kind for which relief may be given in a civil proceeding has a privilege in respect of any communication between that person and any other person who is a party to the dispute if the communication—
(a)was intended to be confidential; and
(b)was made in connection with an attempt to settle or mediate the dispute between the persons.
(2) A person who is a party to a dispute of a kind for which relief may be given in a civil proceeding has a privilege in respect of a confidential document that the person has prepared, or caused to be prepared, in connection with an attempt to mediate the dispute or to negotiate a settlement of the dispute.
Mr Holgate said it mattered not the correspondence was not marked “without prejudice”. I accept this argument but not the overarching one.
[53] The privilege does not arise until there is “a dispute” between the parties, though litigation need not have commenced. So, correspondence to avoid a dispute is
20 Plumpton v Terry [2019] NZHC 3450.
21 Except for the email on 2 and 3 July, Mrs Wynyard’s letter on 4 July, and her lawyers’ letter of 19 November 2013.
not privileged.22 The correspondence was written for just this reason, against the backdrop of a business relationship that had broken down.
[54] I acknowledge it is arguable a dispute arose during the correspondence, perhaps triggering privilege from this point. However, privilege may be waived if the person claiming it produces or discloses any significant part of the privileged communication in circumstances inconsistent with a claim of confidentiality.23
[55] Mrs Wynyard filed an affidavit in reply in which she repeatedly objected to Ms Bremner’s recitation of the correspondence (citing settlement privilege). But in the same affidavit, Mrs Wynyard responded to Ms Bremner’s evidence she offered to sell her shares in the company to Mrs Wynyard for $1. Mrs Wynyard said she did not engage in mediation or any further discussions because “each time that I had done this before, the parameters would change, and each time this happened the costs to the company would go up”. Mrs Wynyard said she felt she was being “targeted unfairly by these changing demands”. Mrs Wynyard appended an email from her lawyers dated 19 November 2013. The email essentially alleged Ms Bremner was being inconsistent and unreasonable, citing five instances of such behaviour.
[56] This aspect of Mrs Wynyard’s reply evidence and her production of the November 2013 email constitute a significant part of the potentially privileged chain in circumstances inconsistent with a claim of confidentiality.
[57] Another aspect cements the analysis. In her original affidavit, Mrs Wynyard adduced the first pieces of correspondence between her and Ms Bremner in relation to their separation: email of 2 and 3 July, and a letter from Mrs Wynyard to Ms Bremner dated 4 July 2013. So, Mrs Wynyard adduced opening and later pieces of correspondence, but nothing else. In short, Mrs Wynyard put the correspondence in issue.
[58] I made this ruling on the first day of trial. When Ms Taefi began exploring the correspondence with Mrs Wynyard, Mrs Wynyard questioned its admissibility. I
22 See the pre-Evidence Act case of City Realties (Rural) Ltd v Wilson Neil Ltd (1996) 9 PRNZ 164 (HC) at 170.
23 Evidence Act, s 65(2).
explained to Mrs Wynyard I had ruled the evidence admissible. She responded, “I don’t see that that’s fair at all”. Because of this, I later raised with Mr Holgate in chambers whether there was evidence the plaintiffs wished to adduce in response; for example, evidence putting the correspondence in a different light. Mr Holgate helpfully confirmed in closing the plaintiffs did not wish to adduce additional evidence. He added, the “documents produced by Ms Bremner have the details … Mrs Wynyard wanted to put before the Court”.
[59] Mr Holgate also objected to the admissibility of the decision of the Complaints Assessment Committee on grounds of irrelevance and insubstantial helpfulness.24 I admitted the evidence as relevant background, given Mrs Wynyard had written to the Authority about Ms Bremner during the material sequence. I placed no weight on the decision.
Result
[60]Both causes of action are dismissed.
Costs
[61] I see no reason for the defendants not to have 2B costs. If the parties disagree, they may file memoranda of not more than eight pages:
(a) The plaintiffs by 27 July 2020.
(b) The defendants by 10 August 2020.
……………………………..
Downs J
24 Evidence Act, ss 7 and 25.
Schedule I
Schedule of properties and evidence
| Key | |
| IB | Alice Irene Bremner |
| DW | Dianne Wynyard |
| JMRE | Jan Madden Real Estate Ltd |
| C21 | Century 21 New Zealand Ltd |
| Property | Vendor | Did company publicly advertise? | How/when did IB meet the vendor? | |
| 1. | 10 Paine Brown Way | Ashman, Helen and Graham | Yes | IB met vendors in 2008, when she was working for Bayleys. |
| 2. | 6 Kaha Place | Barwell, Jennifer | Yes | IB contacted James Barwell through a private listing on Trade Me regarding another property. |
| 3. | 1 Tapeka Road, Lot 6 | Britnell, Richard | Yes | IB contacted vendor on 14 February to see if he wanted to list with Bayleys. |
| 4. | Florance Avenue, Lot 3 | Cumming, Peter Maxwell and Alwyn Rita | Yes | Mrs Cummings came into the JMRE office with her daughter-in-law. |
| 5. | Florance Avenue, Lot 4 | Cumming, Peter Maxwell and Alwyn Rita | Yes | Mrs Cummings came into the JMRE office with her daughter-in-law. |
| 6. | 26 Pomare Road | Doyle, Michael | Yes | IB contacted Mike Doyle in February 2014. |
| 7. | Otamarua Road, Lot 15 | Drexel, Ronald Paul | No | In 2016, IB sold vendor’s sister’s property. Shortly afterwards he asked her to sell his own. DW accepted |
| 8. | 159 Paroa Bay | Jensen, Margaret (TM Investments Ohope Ltd) | Yes | IB tracked TM Investments down through the New Zealand Companies Office. |
| 9. | Lots 2 and 4 Pitt | Knipe, Ian | Yes | IB met Ian Knipe when working at Bayleys (had purchased through Bayleys). They are personal friends of IB. DW accepted this. |
| 10. | Rawhiti Road | Lawler, Cicely | Yes | IB was introduced to Cicely by her neighbour Robin Tanner. |
| 11. | 4 Kakapu Road | Martini, Frederick and Welch, Kathleen | Yes | IB met vendors in 2003 working at Bayleys. |
| 12. | Pomare Bay Estate – 6111 Russell Whakapara Road | Oxenius, Jeanine | Yes | IB contacted caretaker for owner’s details and made contact by email. |
| 13. | 75B Manawaora Road | Robinson, Jennifer and Richard | Yes | IB met vendors before working at C21 – possibly at Omata Winery. |
| 14. | 2 Robertson Road | Mr/Mrs Townsend | No | Beneficiaries of trust approached IB in 2015. |
| 15. | 5263 Esplanade | Tyler, Carolyn | Unsure | IB met Carolyn Tyler through Bayleys prior to working for C21. They are good friends. DW accepted this was the case. |
| 16. | 25 Titore Way | Vetter, Klaus and Volhard, Andrea | Yes | IB met vendors in 2002 when working at Bayleys. |
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