HOOK V GULF HARBOUR TOWN CENTRE LIMITED (IN LIQUIDATION) AND ORS HC AK CIV 2002-404-1931

HOOK V GULF HARBOUR TOWN CENTRE LIMITED (IN LIQUIDATION) AND ORS HC AK CIV 2002- 404-1931 2 March 2007IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2002-404-1931BETWEEN CHRISTOPHER RUSSELL HOOK Plaintiff AND GULF HARBOUR TOWN CENTRE LIMITED (IN LIQUIDATION) First Defendant AND GULF HARBOUR DEVELOPMENT LIMITED (IN LIQUIDATION) Second Defendant AND GULF HARBOUR MANAGEMENT LIMITED (IN LIQUIDATION) Third Defendant AND GULF HARBOUR HOLDINGS LIMITED (IN LIQUIDATION) Fourth Defendant AND GRAEME BRUCE JOHNSTONE Fifth Defendant AND TAN KOK SENG Sixth Defendant AND GOH CHENG LIANG Seventh Defendant AND AUCKLAND REGIONAL HOLDINGS Eighth Defendant AND AMERICA'S CUP VILLAGE LIMITED Ninth Defendant AND JOHN EDWARD CHRISTOPHER SELLICK Third Party Hearing: 10-13 and 16 October 20062 Appearances: S R G Judd for plaintiff J Long and M Heard for 1st-4th defendants J Billington QC and H M Lim for 6th and 7th defendants R B Stewart QC and L A O'Gorman for 8th and 9th defendants Judgment: 2 March 2007JUDGMENT OF ALLAN JSolicitors/Counsel S R G Judd PO Box 3320 Auckland Phillips. PO Box 28649, Auckland Lee Salmon Long, PO Box 2026, Auckland J Billington QC, jb@shortlandchambers.co.nz Gulf Harbour Management Ltd, Manukau R B Stewart QC, rbstewart@xtra.co.nz Buddle Findlay, PO Box 1433 Shortland St, Auckland[1] Gulf Harbour is situated on the southern side of the Whangaparaoa Peninsula. For a period of some years, commencing in the early 1990s, the region was the subject of significant development. An existing marina was enlarged and improved; a town centre and golf course were constructed, and there was very substantial residential expansion. [2] In May 1995 the Royal New Zealand Yacht Squadron won the America's Cup. An America's Cup Regatta was planned for the year 2000; races would be held in the Hauraki Gulf. The regatta would attract a number of racing syndicates and much international interest. Gulf Harbour offered obvious commercial opportunities by reason of its proximity to the proposed course, and its facilities, both existing and planned. [3] The plaintiff, Mr Hook, became interested in participating in exploiting those opportunities. He engaged in negotiations with those who controlled the Gulf Harbour development. Ultimately he entered into a number of commercial arrangements, for which he incorporated several companies. They were: a) An agreement to lease premises in the town centre for the purpose of establishing a licensed restaurant for which Nautilus (Gulf Harbour) Ltd (Nautilus) was incorporated; b) An agreement to lease premises in the town centre in order to establish a tavern business and a wine shop. For that purpose Judder Bar (Gulf Harbour) Ltd (Judder Bar) was incorporated; c) An agreement to lease premises to be fitted out and operated as a hotel. For that purpose Gulf Harbour Lodge Ltd (Lodge) was incorporated; d) The purchase of the only commercially zoned land at Gulf Harbour other than the town centre itself, for the purpose of establishing apetrol station; Gulf Harbour Service Centre Ltd (Services) was incorporated in that regard; e) An agreement to purchase a residential section upon which a house was built as a residence for the plaintiff and his wife. For that purpose Lochmara Ventures Ltd (Lochmara) was incorporated. [4] In addition, the plaintiff incorporated Gulf Harbour Charters Ltd (Charters) with a view to purchasing a vessel to operate charters during the Cup Regatta, in conjunction with the operations of Lodge. [5] Unfortunately, the plaintiff's businesses did not prosper. He says that those controlling Gulf Harbour made a number of false representations to him. In particular, he complains that he was given to understand that a number of racing syndicates would be based at Gulf Harbour. In the end, all syndicates went to the Viaduct Basin. Mr Hook sold his shareholding in Charters in late 1998, and in Services in January 1999. Lodge, Nautilus and Judder Bar were placed in liquidation on 20 April 1999. Mr Hook says that he has suffered significant financial loss. [6] As a result the plaintiff first issued proceedings on 12 November 2001. That statement of claim was amended on 22 April 2002, and the proceeding was joined by a second claim, CP442/02, filed on 10 October 2002. Those claims were consolidated with effect from 20 March 2003. The proceedings have followed a somewhat complicated course. There have been no fewer than seven separate statements of claim alleging various causes of action against a range of defendants. It is however, unnecessary to trace the history of the litigation for the purposes of the interlocutory applications with which this judgment is concerned, because counsel are agreed that the Court's attention can properly be confined to Mr Hook's third amended consolidated statement of claim dated 14 December 2005, to be considered in the light of the immediately preceding claim, the second amended consolidated statement of claim dated 11 March 2004. References to Mr Hook's statement of claim hereafter are to the third amended consolidated statement of claim unless otherwise stipulated.[7] The statement of claim greatly expands the scope of the proceeding, both in respect of the number of defendants named, and the number and character of the causes of action pleaded. The first four defendants are Gulf Harbour Town Centre Ltd (first defendant), Gulf Harbour Development Ltd (second defendant) Gulf Harbour Management Ltd (third defendant) and Gulf Harbour Holdings Ltd (fourth defendant). All are in liquidation. The first, second and fourth defendants were the only defendants named in the second amended consolidated statement of claim. [8] In broad terms, the first defendant was involved in the development of the town centre, the second defendant was responsible for the development of the land surrounding the town centre and the marina, the third defendant was a management company and the fourth defendant was the sole shareholder in the first three defendants. [9] The fifth defendant, Mr Johnstone, is claimed to have been general manager of one or more entities within the Gulf Harbour group. The sixth defendant, Mr Tan, is said to have been managing director of Gulf Harbour Developments and Gulf Harbour Management. The seventh defendant Mr Goh was a director of Gulf Harbour Holdings and is alleged to have "controlled, directly or indirectly, the [Gulf Harbour] group". The eighth defendant, Auckland Regional Holdings, is a local authority associated with the Auckland Regional Council. It was formerly known as Infrastructure Auckland, and prior to that, as the Auckland Regional Services Trust (ARST). The ninth defendant is America's Cup Village Ltd (ACV), incorporated by the ARST for the purpose of participating in the provision of America's Cup bases and services at the Viaduct Basin. It owned land in the vicinity of the Basin.The causes of action[10] As a first cause of action Mr Hook claims that all of the defendants are parties to, or relevantly involved in, anti-competitive conduct, arising from the terms and implementation of two written agreements entered into on 11 September 1997 (the September 1997 agreement) and 24 November 1998 (the November 1998 agreement) respectively.[11] It is pleaded that these agreements, and their implementation, had the purpose and/or likely effect of substantially lessening competition in a market in breach of s 27 of the Commerce Act 1986. [12] All the defendants are said to have been involved in anti-competitive conduct, either as contracting parties, or by aiding, abetting, procuring or being directly or indirectly knowingly concerned in that conduct. [13] The plaintiff claims the consequence of the conduct was that, by agreement between the defendants, no yachting syndicates and no super-yachts were based at Gulf Harbour, with consequent adverse financial implications for the plaintiff and his companies. [14] In the second cause of action, also pleaded against all defendants, the plaintiff alleges an unlawful means conspiracy involving all defendants and arising from the alleged breach of s 27 of the Commerce Act 1986, certain misleading representations as to the true nature of the relationship between ACV and the Gulf Harbour companies in breach of s 9 of the Fair Trading Act 1986, and the commission of the torts of deceit and negligent mis-statement. [15] The third to sixth causes of action are pleaded against the first to seventh defendants inclusive only. The third cause of action pleads deceit, said to arise from certain false representations about Gulf Harbour's prospects made to the plaintiff at a time when the defendants were aware of the anti-competitive conduct arising from the September 1997 and November 1998 agreements, and were thereby known by the defendants to be false. The fourth cause of action is similarly based, but alleges negligent mis-statement. The fifth cause of action pleads the provisions of s 9 of the Fair Trading Act 1986, again founded upon representations said to have been made in the context of the alleged anti-competitive conduct. The sixth cause of action, similarly grounded, alleges promissory estoppel. [16] The seventh and eighth causes of action are pleaded against Gulf Harbour Town Centre Ltd and Gulf Harbour Development Ltd only. They allege breaches of contract and are largely replications of pleadings found in the second amendedconsolidated statement of claim. The seventh and eighth causes of action were not the subject of challenge before me.Plaintiff's losses[17] Mr Hook is the sole plaintiff. He claims in his own right to have lost a total of $811,607 made up of unrecovered advances made by him to Nautilus, Judder Bar, and Lodge, together with payments of $112,312 in respect of his personal guarantee of the obligations of Nautilus and Judder Bar, and some $277,362 for legal fees and Court costs. He says also that his companies have suffered a total loss of profits of $4,100,000 and that the businesses of Judder Bar, Nautilus, and Lodge respectively, having totally failed, have suffered capital losses of $1,500,000 in total. [18] Mr Hook's personal entitlement to damages for losses suffered by his companies is an issue which is not directly addressed in the pleadings. It is not immediately obvious how he can maintain a claim for losses suffered by his companies, as distinct from those which he can establish as personal to him. I return to this point later. [19] Finally, Mr Hook alleges that he is entitled to distress damages of $300,000 and exemplary damages totalling $3.25m. [20] The detail of these alleged losses appears in the section of the statement of claim which precedes the separate causes of action. The first-sixth causes of action in each case incorporate an identical prayer for relief, in which Mr Hook claims: a) Damages for pecuniary loss to be assessed at trial, or an inquiry into damages; b) General damages for non-pecuniary damage of $300,000; c) Exemplary damages of $3.25m; d) Interest;e) Costs.The applications[21] Several interlocutory applications were the subject of very detailed argument during the course of the five day hearing, in which, as Ms O'Gorman neatly put it, I was: swamped with a mass of paper and submissions relating to a wide range of matters including: various proceedings involving seven statements of claim against a progressively increasing number of different defendants since November 2001; various judgments delivered in those proceedings; amendments to the limitation periods under the Commerce Act and the Fair Trading Act; pleas of negligent mis-statement, deceptive/misleading conduct, anti-competitive conduct, conspiracy, deceit, concealment, compromise, estoppel, limitation bars and standing issues; six volumes of case law – some of which conflicts; construction and interpretation issues in relation to the limitation legislation.[22] The applications before the Court comprised: a) An application by Mr Hook to join Lochmara as a plaintiff and Lodge, Nautilus and Judder Bar as defendants; b) An application by the first-fourth defendants for orders striking out portions of the plaintiff's statement of claim; c) An application by the seventh defendant to dismiss the proceeding as against him. This application is made in reliance on r 131 following the filing of a notice of protest to jurisdiction;d) An application by the eighth and ninth defendants for an order striking out the claim as against them, or alternatively for defendants' summary judgment. [23] There is a significant degree of overlap between the defendants' applications. In particular, all defendants argue that most of the plaintiff's causes of action are statute barred. It is convenient to deal with that issue first, because my conclusions on this point will affect the outcome of certain other applications.Strike out/defendant's summary judgment[24] This Court has jurisdiction to strike out pleadings under r 186 of the High Court Rules, and under its inherent jurisdiction. Rule 186 provides:186 Striking out pleadingWithout prejudice to the inherent jurisdiction of the Court in that regard, where a pleading— (a) Discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; or (b) Is likely to cause prejudice, embarrassment, or delay in the proceeding; or (c) Is otherwise an abuse of the process of the Court,— the Court may at any stage of the proceeding, on such terms as it thinks fit, order that the whole or any part of the pleading be struck out.[25] The principles pertaining to strike out applications are well-settled. In van Soest v Residual Health Management Unit [2000] 1 NZLR 179 (CA) at [7], Blanchard J for the Court said:It is common ground that a claim is not to be struck out unless it [is] so clearly untenable that it could not possibly succeed even after amendment in a manner proposed by the plaintiff, and on the assumption that all facts alleged in the statement of claim can be proved to be true (R Lucas & Son (Nelson Mail) Ltd v O'Brien [1978] 2 NZLR 289 at 294 – 295; Takaro Properties Ltd (in receivership) v Rowling [1978] 2 NZLR 314 at 316 – 317; Attorney- General v Prince and Gardner [1998] 1 NZLR 262 at p267). The statement of claim must be beyond repair. It must be plain that even if it is reformulated the claim cannot succeed.[26] It has been noted that the jurisdiction is one to be exercised sparingly, and only in a clear case where the Court is satisfied it has the requisite material. However, the fact that applications to strike out raise difficult questions of law, and require extensive argument, does not exclude the jurisdiction: Attorney-General v Prince and Gardner. [27] Alternatively, the Court may give judgment against a plaintiff where it is held that no pleaded cause of action can succeed. Rule 136(2) provides:136 Judgment where there is no defence or where no cause of action can succeedThe Court may give judgment against a plaintiff if the defendant satisfies the Court that none of the causes of action in the plaintiff's statement of claim can succeed.[28] Rule 136(2) permits a defendant who has a clear answer to the plaintiff to put up the evidence which constitutes the answer so that the proceedings can be summarily dismissed: Westpac Banking Corporation v M M Kembla NZ Ltd [2001] 2 NZLR 298; Jones v Attorney-General [2004] 1 NZLR 433. A defendant's application for summary judgment is similar to an application to strike out; however, an application for summary judgment must be supported by affidavit evidence. It is thereby possible to obtain judgment on the basis of material other than that contained in the pleadings. Summary judgment is suitable for cases where an abbreviated procedure and affidavit evidence will sufficiently expose the facts and the legal issues: Westpac Banking Corporation v M M Kembla NZ Ltd. Rarely, if ever, will the procedure be appropriate where the outcome of the action may depend on disputed issues of fact: Jones v Attorney-General. Further, summary judgment is not available to a defendant who cannot show that the plaintiff must fail on each and every cause of action. [29] The onus lies on the party bringing either application to prove that the plaintiff cannot succeed. It has been observed that this is an exacting test, as it is a serious thing to stop a plaintiff bringing his claim to trial: Jones v Attorney-Generalat [10]; Adams v Joseph Banks Trusts Ltd HC WN CP224/91 4 March 1992, Master Williams QC at 2.Limitation issues –the law[30] Counsel for the defendants join in arguing that Mr Hook's statement of claim must be struck out at least to the extent to which it relies upon alleged breaches of the Commerce Act 1986, because any such claim is statute barred. [31] As it now stands, s 82 of the Commerce Act provides:82 Actions for damages for contravention of Part 2(1) Every person is liable in damages for any loss or damage caused by that person engaging in conduct that constitutes any of the following— (a) A contravention of any of the provisions of Part 2 of this Act: (b) Aiding, abetting, counselling, or procuring the contravention of such a provision: (c) Inducing by threats, promises, or otherwise the contravention of such a provision: (d) Being in any way directly or indirectly, knowingly concerned in, or party to, the contravention of such a provision: (e) Conspiring with any other person in the contravention of such a provision. (2) An action under subsection (1) may be commenced within 3 years after the matter giving rise to the contravention was discovered or ought reasonably to have been discovered. However, no action under subsection (1) may be commenced 10 years or more after the matter giving rise to the contravention.[32] The section took effect in that form from 26 May 2001, by virtue of s 19 of the Commerce Amendment Act 2001. Prior to that date, s 82(2) relevantly provided:An action under subs (1) of this section may be commenced at any time within 3 years from the time when the cause of action arose.[33] Section 26 of the Commerce Amendment Act provides:26 Provisions as to proceedings already barred and pending proceedingsNothing in this Act—(a) enables any proceedings to be brought that were barred before the commencement of this Act; or (b) affects any proceedings commenced before the commencement of this Act.[34] It is self-evident that s 19 was intended to effect a substantive change in Commerce Act limitation provisions. Section 26 would otherwise have been superfluous. The effect of s 26 is that causes of action based upon alleged breaches of the Commerce Act will be time barred if: a) They were already barred under the former s 82(2) prior to 26 May 2001; or b) They were not brought within the time specified in s 82(2) as it now stands. [35] Section 82(2) pre-amendment contained no explicit discoverability provision of the type more recently enacted. Nevertheless in Bomac Laboratories Ltd v F Hoffman-La Roche Ltd (2002) 7 NZBLC 103,627, Harrison J held that the reasonable discoverability doctrine should be read into s 82(2) as it stood pre- amendment at [172]. Fisher J took a different view in Commerce Commission v Roche Products New Zealand Ltd [2003] 2 NZLR 519 which dealt with the construction of very similar language in s 80(5) of the Commerce Act. [36] Importantly, the Court of Appeal has recently pointed out that the reasonable discoverability doctrine is not a general test to be applied in a wide variety of circumstances. As the law stands, it will be relevant only in cases of latent defects in buildings, personal injury claims and sexual assault cases: Murray v Morel & Co Ltd [2006] 2 NZLR 366 at [43]-[53], affirmed in Securities Commission v Midavia Rail Investments BVBA CA252/05 29 November 2006. I am satisfied that, under the subsection as it stood pre-amendment, time commenced to run from the date upon which the cause of action arose. Questions of reasonable discoverability are not relevant.[37] I accept the submission of counsel for the eighth and ninth defendants that the Courts have used the expressions "arose" and "accrued" interchangeably in this context: see for example Invercargill City v Hamlin [1996] 1 NZLR 513 at 523. In general a cause of action will arise, or accrue, when all the material facts and elements of the cause of action first come into existence: Saunders & Co v Bank of New Zealand [2002] 2 NZLR 270 at [28]. Counsel for the defendants accept that pre-amendment, time did not start running against the plaintiff until some loss or damage had occurred. [38] Post-amendment, the limitation landscape has changed. Section 82(2) as it now stands is similar (leaving aside the reasonable discoverability factor) to the provisions of s 43(5) of the Fair Trading Act 1986, prior to its amendment in 2001. At that time s 43(5) provided:An application under subsection (1) of this section may be made at any time within 3 years from the time when the matter giving rise to the application occurred.[39] In Murray v Eliza Jane Holdings Ltd (1993) 6 PRNZ 251, the Court of Appeal held that time began running under s 43(5) whether or not loss or damage had occurred. The words of the section were aimed at conduct simpliciter. The reasons given by the Court of Appeal are equally applicable to the present case: a) The Act was intended to catch both claims for loss already suffered and proceedings based on the likelihood of future loss or damage; b) The word "matter" was singular and not apt to cover both conduct and ensuing loss; c) "Matter" could not logically include loss or damage when a person could seek an injunction on the premise that he or she was likely to suffer loss in the future. [40] I accept the submission of counsel for the eight and ninth defendants that the expression "matter giving rise to the contravention" in s 82(2) post-amendment, is a reference to any conduct in contravention of the Commerce Act, whether or not lossor damage has been suffered by a plaintiff at the time. In consequence, time will begin to run whether or not any such loss or damage has been suffered. [41] Section 82(2) as it now stands incorporates the reasonable discoverability test couched, as is usual, in partly objective terms. If the matter giving rise to the contravention has been discovered in fact, then time will begin to run at that point. But time will commence running at an earlier stage if the matter giving rise to the contravention "ought reasonably to have been discovered" at that earlier time. The test to be applied in determining whether a matter giving rise to a contravention ought reasonably to have been discovered, was discussed by the Court of Appeal inAmaltal Corporation Ltd v Maruha Corporation (2006) 3 NZCCLR 1. Following a discussion of the authorities, the Court concluded that what is required is reasonable diligence, not exceptional diligence: see [151]-[161]. [42] Further, the test is to be applied by considering how a person carrying on a business of the relevant kind would act if he had adequate but not unlimited staff resources, and was motivated by a reasonable, but not excessive, sense of urgency:Paragon Finance PLC v DB Thakerar & Co (a firm) [1999] 1 All ER 400 (CA), approved by the Court of Appeal at [155] of Amaltal. [43] It is the discovery or reasonable discoverability of facts which triggers the running of time for limitation purposes, not the legal consequences of those facts:Stratford v Phillips Shayle-George (2001) 15 PRNZ 573 at 579 (CA). [44] As earlier noted the plaintiff's fifth cause of action invokes s 9 of the Fair Trading Act. Limitation issues under that Act fall to be considered under s 43(5). In its earlier form, that subsection is set out and discussed above. It was however amended with effect from 3 May 2001, and now provides:(5) An application under subsection (1) may be made at any time within 3 years after the date on which the loss or damage, or the likelihood of loss or damage, was discovered or ought reasonably to have been discovered.[45] The relevant savings provision is to be found in s 4 of the Fair Trading Amendment Act 2001, which provides that the amended section does not affect anyproceedings that were barred before the commencement of the Amendment Act or any proceedings commenced prior to 3 May 2001. [46] Accordingly, in the present case, the cause of action brought in reliance on the Fair Trading Act will be barred if it can be shown that either it was barred under the pre-amendment provision, prior to 3 May 2001, or that the plaintiff had discovered, or ought reasonably to have discovered, loss or damage or the likelihood of loss or damage, prior to 14 December 2002 (the statement of claim having been filed on 14 December 2005). Pre-amendment, s 43(5) incorporated no reasonable discoverability test: Murray v Eliza Jane Holdings Ltd.[47] Section 41(a) of the Limitation Act 1950 provides for a limitation period of six years from the date of accrual of a cause of action, in a proceeding founded on simple contract or tort, but s 33(1) provides that the Limitation Act has no application where a limitation period is prescribed by another enactment.Limitation issues – the factual matrix[48] In March 1996, as earlier recounted, the Gulf Harbour Group (of which the first-fourth defendants formed part), and its management, had become interested in developing Gulf Harbour to accommodate America's Cup challenge syndicates and super yachts and other spectators for the 2000 America's Cup challenge. During 1996 and 1997, that group corresponded with a number of challenge syndicates. On the evidence it appears that negotiations with various syndicates extended over a period from about late 1996 through to about September 1997. There is evidence of distinct interest, for example, from Newport Challenge and the New York Yacht Club. Initially, Bayswater appeared to be a viable option as a base for challengers and super yachts, but fairly soon it emerged that the true competitors were the Viaduct area and Gulf Harbour. [49] In 1996 the plaintiff set up and funded Lochmara, Nautilus and Judder Bar. Lochmara purchased the land on which the plaintiff's residence was built in May 1996. Nautilus and Judder Bar signed their leases on 21 October 1996. Mr Hookinvested in Lodge in February 1997, in Services on 27 May 1997, and incorporated Charter on 12 November 1997. [50] The Gulf Harbour Group applied for appropriate resource consents in July 1997, and for that purpose obtained a report from Beca Carter dated 26 July 1997, which strongly supported the Gulf Harbour facility as a viable and highly suitable alternative to the Viaduct Basin. [51] In mid-1997 the ARST and ACV were becoming concerned about competition from Gulf Harbour for America's Cup syndicates. There is evidence that on 24 June 1997, a representative of the ARST told a lawyer acting for the Gulf Harbour Group that the Trust was concerned about competition and proposed to oppose Gulf Harbour's resource consent application. [52] On 11 September 1997 ACV and Gulf Harbour Development Ltd entered into the September 1997 agreement. In summary, this agreement:• stipulated that the relationship between the parties was not that of partners, although they agreed to hold themselves out to the public at large as such;• conferred upon ACV the right to take over negotiations with interested syndicates and other parties, in respect of the possible provision of facilities at Gulf Harbour;• provided generally that ACV would support the development at Gulf Harbour;• recorded in general terms an expectation that at least one high profile racing syndicate would be based at Gulf Harbour. The agreement listed a number of possible challengers which might be so based, but notably excluded both Newport Challenge and New York Yacht Club. However there was a caveat upon the possibility of any challenger being located at Gulf Harbour; if eight or fewer teams committed to base occupancy arrangements at the Viaduct, then ACV was entitled to allocate all teams to the Viaduct Basin base. Only if nine ormore teams were committed, would ACV's obligation to use its best endeavours to ensure that at least one such team went to Gulf Harbour, arise;• provided a guarantee by ACV to Gulf Harbour that the latter would receive payment of sums totalling at least $4m from the Gulf Harbour base facilities, including $2m plus GST to be paid immediately on signing the agreement;• contained an indemnity " given the potentially contentious nature of ACV's role under this agreement " by ACV in respect of any liability which Gulf Harbour might incur by reason of the existence of the agreement. [53] The overall effect of the agreement was that Gulf Harbour relinquished to ACV the right to contract with interested parties for the provision of facilities at Gulf Harbour. [54] The parties to the agreement joined in a press release which conveyed the overall impression that the likelihood of racing syndicates being based at Gulf Harbour was increased by reason of the conclusion of the agreement. [55] At about this time other publications produced by or on behalf of the Gulf Harbour Group likewise conveyed the impression that there was a high likelihood that racing syndicates would be based at Gulf Harbour. Indeed, it seems that by the time of the November 1997 agreement, Gulf Harbour's own negotiations with the New York Yacht Club were at an advanced stage. [56] The general effect of the September 1997 agreement appears to have become common knowledge after a time, at least in the Auckland commercial community. On 7 November 1997, the Independent Business Weekly published an article headed "Renewed Support and Another Boat Race for America's Cup Base". The article included the following passage:Another reason for the turnaround in challenger sentiment is that the Gulf Harbour Marina at Whangaparaoa is no longer an immediate option. ACVL has a marketing agreement with the Gulf Harbour developers whereby the Viaduct Basin village will be filled first, and any over-flow will then go to Gulf Harbour. Sutherland won't confirm the amount paid to Gulf Harbour as part of the deal.[57] In the issue of the National Business Review of 6 March 1998, the following appeared:Under the deal done last year between ACVL and Gulf Harbour developers – the Viaduct Basin was to be filled first and the overflow was to go to Whangaparaoa. General Manager at Gulf Harbour Development, Graeme Johnstone, said it was now unlikely that any of the syndicates would be based there.[58] By that time Mr Hook had met Mr Goh. The first occasion was in November 1997, and on the plaintiff's evidence there were two further meetings in 1998. Mr Hook says that on these occasions Mr Goh made various representations to him, to the general effect that Gulf Harbour's America's Cup prospects were good, and Mr Hook should therefore continue with his involvement in the Gulf Harbour area, and that there were prospects of joint ventures between them. For his part, Mr Goh accepts that he may have met Mr Hook once or twice but says that those meetings were purely social. He vehemently denies the account given by Mr Hook, and indeed denies that one or two of the meetings of which Mr Hook speaks ever took place. [59] There is evidence to suggest, to put matters at their lowest, that Mr Goh was rightly regarded in the Gulf Harbour area as the effective owner of the Gulf Harbour Group, and the person who made the important decisions. [60] Although on Mr Hook's evidence there were several positive and constructive meetings between him and Mr Goh between late 1997 and about mid- 1998, disputes had plainly arisen between Mr Hook and the Gulf Harbour Group at a relatively early stage, and certainly by late 1997. [61] On 27 May 1998 Mr Hook's then solicitor, Mr Seebold of Kensington Swan, wrote to Gulf Harbour Management Ltd. This was a long letter dealing with a number of issues which had arisen with respect to various defaults under leases and mortgages and in respect of fit out payment discrepancies. The letter included the following passage:Other matters 5.1 Mr Hook has asked us to convey to you his concern and regret at the apparent deterioration in the working relationship between GHL and GHD. 5.2 In respect of the lodge, we record the fact that Mr Hook only agreed to lease the premises after much discussion and persuasion by Colliers Jardine and Gulf Harbour management, namely Mr Tan and Mr Johnstone. We understand that GHD was unable to secure a lessee for the Lodge and as is evidenced by the terms of the lease agreement itself, the lease agreement reflected the 'friendly' arrangement entered into by the parties. Prior to entering the lease, Mr Hook made it very clear that because of the market uncertainties and the possibility of having to provide financial support to Nautilus and Judder Bar for the first two years of operation, the Lodge would not be able to sustain a negative cash flow during its start up phase. As mentioned earlier, it was understood that GHD would provide assistance to GHL in the event of difficult times. 5.3 To date, the Lodge has produced a negative cash flow which has been covered by GHL through the summer months and by using the positive cash flow of Nautilus and Judder Bar. However, the overall cash flow is now negative as previously outlined to GHD. 5.4 In addition, further representations were made by GHD to Mr Hook in respect of the development plans for Gulf Harbour. In particular, Mr Hook was led to believe that stage 2 of the village would be built soon after stage 1 and that a number of the America's Cup Challenge Syndicates would be based at Gulf Harbour from August 1998 until the conclusion of the Challenger Series in March 2000. These representations were relied upon by Mr Hook in reaching a decision to lease the Lodge premises, Nautilus, the Judder Bar and the wine shop. GHD has breached its representations to GHL and Mr Hook in the following ways: (a) Entering into an agreement with parties concerned with the Viaduct Basin development to prohibit any America's Cup Syndicates being based at Gulf Harbour; (b) Stage 2 of the Marine Village Commercial Centre has not commenced and GHD has not secured during Stage 1 the quality and variety of tenancies as represented; (c) Phase 4 apartments have failed to attract buyers as contemplated; and has deferred the development of further canal housing; (d) The Admiralty Hills Residential Development has fallen over and the property has been returned to GHD with the result that there will be a delay for one to two years; and (e) Cape Villas development has been stalled for six months and has probably been set back at least one year.[62] Particularly noteworthy for present purposes is paragraph 5.4(a) which evidences an awareness on Mr Hook's part of the existence and general effect of the November 1997 agreement. It seems from Mr Hook's evidence that he first learned of the existence and effect of the agreement early in 1998, from Mr Johnstone. [63] On 4 June 1998 Gulf Harbour responded to the Kensington Swan letter in writing. The response confirmed the existence of an agreement, but declined to disclose its contents on confidentiality grounds. [64] On 21 August 1998, the first defendant, Lodge, Nautilus, Judder Bar and Messrs Hook and Sellick, entered into a deed of settlement, under which various obligations between the parties were cancelled and various payments agreed upon. That deed included the following provision:Full and final settlement5.1 The parties agree that this deed represents the full and final settlement of all claims (including, without limitation, the claims referred to in the Kensington Swan letter to Gulf Harbour Management Limited of 27 May 1998 and correspondence between the parties from May to August 1998) which any party may have against the others (either now and in the future) and that none of the parties shall have any further claim against any other party in respect of any matter relating to this deed.[65] In the meantime, solicitors acting for the Gulf Harbour Group and for the eighth and ninth defendants became progressively concerned as to the possible anti- trust implications of the September 1997 agreement. Ultimately, ACV and Gulf Harbour Developments entered into a further agreement on 24 November 1998. This agreement:• terminated the September 1997 agreement;• provided that the Gulf Harbour Group would proceed with the construction of five fully serviced berths at Gulf Harbour;• provided that ACV would be the exclusive marketing agent for those berths;• required Gulf Harbour to obtain any necessary further resource consents;• conferred upon ACV the sole responsibility for management of bookings for the new berths;• provided for a payment by ACV to Gulf Harbour Developments of $4m (inclusive of the sum of $2m paid under the September 1997 agreement), the second tranche of $2m + GST being payable on 1 February 1999;• provided for the sharing between the parties of ultimate profits, if any;• conferred upon Gulf Harbour Developments the right to terminate the November 1998 agreement on or before 1 December 1998 (that is, within one week of the date of the agreement itself) in which case the total consideration payable under the agreement was reduced from $4m to $3m;• contained confidentiality and indemnity provisions broadly similar to those appearing in the September 1997 agreement. [66] On 26 November 1998, just two days later, Gulf Harbour Developments did terminate the November 1998 agreement. In January 1999, it received a termination payment of $1.125m from ACV, being the sum to which it was entitled consequent on its termination of the agreement. [67] On 28 April 1999, Lodge, Nautilus and Judder Bar were placed in liquidation.Limitation Issues – findings[68] Central to those causes of action with which this judgment is concerned, is the allegation that the September 1997 agreement and the November 1998 agreement breached s 27 of the Commerce Act 1986. Irrespective of the position pre- amendment, causes of action founded upon that allegation would be statute barred under s 82(2) as it now stands, unless Mr Hook had not discovered, and ought not reasonably to have discovered, the matter giving rise to the contravention prior to 14 December 2002. As discussed above, loss or damage is not part of the relevantinquiry. The focus is upon the alleged contravening conduct. I accept that it is for the defendants to show that the claim is statute barred. [69] The article in the Independent on 7 November 1997 constituted the first evidence of knowledge in the market place of the September 1997 agreement, and of the fact that that agreement effectively conferred priority on the Viaduct Basin Village over Gulf Harbour. But the Independent newspaper has a limited circulation and it would not be right to draw the inference that Mr Hook must have seen it. [70] Then there is the article in the National Business Review of 6 March 1998, which provided further disclosures relating to the agreement, indicated that the New York Yacht Club had changed its mind about Gulf Harbour in the light of the agreement and recorded Mr Johnstone as saying it was unlikely any of the syndicates would now be based at Gulf Harbour. Again, it cannot be taken for granted that Mr Hook would have seen that article. But there is evidence that Mr Johnstone did advise Mr Hook orally, at about that time, of the existence and effect of the November 1997 agreement, and indeed it is common ground that he did so. [71] The Kensington Swan letter of 27 May 1998, is in my view, pivotal. Acting on Mr Hook's instructions, Kensington Swan complained to Gulf Harbour of the agreement " to prohibit any America's Cup Syndicate being based at Gulf Harbour ". It is incontrovertible that Mr Hook knew at least by the date of that letter, that a deal, now alleged by him to be anti-competitive, had been done between Gulf Harbour and those involved in the Viaduct Basin development. Indeed, that much is confirmed in Mr Hook's affidavit of 31 March 2006, at paragraph 20. [72] Mr Judd submits that although Mr Hook may have been aware, in a broad sense, of what had transpired, he did not have the agreements themselves, and could not have been expected to appreciate the legal significance of the arrangements entered into between Gulf Harbour on the one hand, and the eighth and ninth defendants on the other. In support of that argument, he refers to the fact that although Mr Hook was represented by several solicitors over a period of several years, none appears to have appreciated the possibility that a breach of the Commerce Act had occurred. The simple answer to that submission is that thepresent inquiry must be as to the knowledge by a plaintiff of the relevant facts, or the reasonable discoverability of those facts; the legal consequences are irrelevantStratford v Phillips Shayle-George at 579. [73] Neither does it assist Mr Hook to assert that he was not in a position to launch proceedings until he had seen a copy of the relevant agreements. For a considerable period prior to 14 December 2002, Mr Hook had sufficient information to enable him to issue proceedings, if necessary with the assistance of documents obtained following pre-commencement discovery. Moreover, in anti-trust cases, the Court is alive to the fact that the bulk of the evidence required by a plaintiff in order to prove his or her case, will often be obtained on discovery; the Court will hesitate to strike out a statement of claim even when the allegations are initially scanty: see the useful discussion in Commerce Commission v Qantas Airways Ltd (No.2) (1992) 4 TCLR 444 at pp 447-448. [74] In my view, Mr Hook ought reasonably have discovered the matters giving rise to the alleged contravention of the Commerce Act, well before 14 December 2002. Indeed, it may fairly be said that he had in fact discovered them, even though the agreements themselves were not seen by him until late 2004, in the course of discovery in this proceeding. [75] I conclude therefore that the plaintiff's first cause of action is statute barred unless certain other matters raised by Mr Judd give rise to a different outcome. Those matters are discussed below. [76] I turn to the cause of action which alleges a breach of s 9 of the Fair Trading Act 1986. Pre-amendment, s 43(5) of that Act provided for a limitation period of three years from the date of the contravening conduct, whether or not any loss or damage had been suffered. The amendment to the subsection took effect on 3 May 2001, so the plaintiff would be time barred under the Fair Trading Act in respect of alleged anti-competitive conduct that occurred prior to 3 May 1998. That would bar any proceeding in respect of the September 1997 contract, and any reliance on any representations made to Mr Hook prior to 3 May 1998.[77] Under the amended s 43(5), Mr Hook's claim will be time barred if he had discovered, or ought reasonably to have discovered loss or damage, or the likelihood of loss or damage, resulting from the impugned conduct prior to 14 December 2002. I have held that the conduct concerned ought reasonably to have been discovered well prior to 14 December 2002. Because Mr Hook's interests already owned or leased property at Gulf Harbour and operated several businesses there at the time of the challenged conduct, and would plainly be affected by it, he ought reasonably to have discovered relevant loss or damage well before 14 December 2002. [78] In my view the defendants have established the plaintiff's failure to bring himself within the limitation period prescribed by the Fair Trading Act. [79] The third cause of action (deceit) and the sixth (promissory estoppel) appeared in the second amended consolidated statement of claim, but they are now heavily based on factual allegations not previously pleaded, namely the anti- competitive conduct in which the defendants were allegedly involved. An amended pleading raises a new cause of action when new matters of fact or law are pleaded to the extent that there is an essentially different pleading: Chilcott v Goss [1995] 1 NZLR 263 at 273. In my opinion, the second, third, fourth and sixth causes of action must be regarded as newly brought in the statement of claim of 14 December 2005. [80] The second, third and fourth causes of action are tortious in character. The sixth cause of action alleges the existence of promissory estoppel. There is no specific time limit for the bringing of an equitable cause of action, but where it is pleaded together with actions founded on tort or contract, the same time limits will apply to the equitable cause of action by analogy: Saunders & Co v BNZ. Each of these causes of action is accordingly subject to the limitation provisions contained in the Limitation Act. [81] Mr Hook incurred financial obligations as a principal party in respect of certain of the leases and mortgages into which he entered as part of his Gulf Harbour activities. His companies were placed in liquidation on 28 April 1999. To the extent to which the existence of loss or damage is an essential ingredient of a cause of action I am satisfied that such loss or damage must have occurred, at the latest, by 28April 1999. All of the remaining ingredients of these causes of action were likewise in existence by that date. If that is so, then Mr Hook's claims became statute barred at the latest on 28 April 2005, some months prior to the date of the statement of claim. [82] Mr Judd argues however that the six year limitation period must be postponed pursuant to s 28 of the Limitation Act, because the defendants have deliberately concealed their conduct. [83] Section 28 provides:28 Postponement of limitation period in case of fraud or mistakeWhere, in the case of any action for which a period of limitation is prescribed by this Act, either— (a) The action is based upon the fraud of the defendant or his agent or of any person through whom he claims or his agent; or (b) The right of action is concealed by the fraud of any such person as aforesaid; or (c) The action is for relief from the consequences of a mistake,— the period of limitation shall not begin to run until the plaintiff has discovered the fraud or the mistake, as the case may be, or could with reasonable diligence have discovered it: Provided that nothing in this section shall enable any action to be brought to recover, or enforce any charge against, or set aside any transaction affecting, any property which— (d) In the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know or have reason to believe that any fraud had been committed; or (e) In the case of mistake, has been purchased for valuable consideration, subsequently to the transaction in which the mistake was made, by a person who did not know or have reason to believe that the mistake had been made.[84] In Inca v Autoscript (New Zealand) Ltd [1979] 2 NZLR 700 at 711, Mahon J explained that s 28(2): uses the word 'fraud' in para (a) as meaning either fraud at common law or equitable fraud Paragraph (b) covers causes of action other than fraud,and the limitation defence will be barred for the appropriate period either where there is dishonest concealment of the cause of action, equivalent to common law fraud, or where there is non-disclosure occurring in such circumstances as to amount to equitable fraud.[85] The latter will arise only where there is a fiduciary relationship, or where: by virtue of a contract or other legal relationship subsisting between the parties, a duty to disclose the facts giving rise to a cause of action was expressly or impliedly created.[86] Mr Judd submits that the commencement of the limitation period must be postponed to late 2004, being the time at which the plaintiff ultimately obtained copies of the September 1997 and the November 1998 agreements. [87] I am unable to accept that submission. There is nothing before the Court to support a claim that a relevant fiduciary relationship involving a duty of disclosure existed between the parties. Neither is there any evidence of concealment of the sort described by Mahon J. [88] Mr Hook accepts that he was told by Mr Johnstone in the early part of 1998, of the existence of the September 1997 agreement, and of its general effect. Mr Johnstone was a senior officer within the Gulf Harbour Group. Such disclosure is the very antithesis of the concealment which Mr Judd asserts took place. Mr Hook knew by the time of the Kensington Swan letter of 27 May 1998 that the September 1997 agreement might well operate in a manner adverse to his interests. From the time of the liquidation of his companies in April 1999, he must have been aware of the potential for loss. There is no room in this case for the application of s 28. [89] The second, third and fourth causes of action are statute barred. So is the sixth to the extent that it is brought against parties other than the first, second and fourth defendants, and to the extent that it relies upon the alleged anti-competitive conduct of the defendants.Commerce Act: s 89[90] Mr Judd argues that the limitation provisions contained in s 82(2) of the Commerce Act do not apply to claims for damages brought in reliance on s 89 of the Act. [91] Section 89(1) provides:89 Other orders(1) Where, in any proceedings under this Part of this Act, the Court finds that a person who is a party to the proceedings has suffered, or is likely to suffer, loss or damage by conduct of another person that was engaged in contravention of any of the provisions of Part 2 of this Act, the Court may, whether or not it grants an injunction or makes any other order under this Part of this Act, make such order or orders as it thinks appropriate against the person who engaged in the conduct, or any other person who in relation to the contravention did any act referred to in section 81(b) to (f) of this Act.[92] Mr Judd argues that s 89(1) is a stand alone provision, not subject to the provisions of s 82(2), but covered by the provisions of the Limitation Act 1950. I disagree. Section 89 does not confer a separate right of action. It is conditioned upon the existence of "any proceedings under this Part of this Act" so that the powers conferred on the Court by s 89(1) are exercisable only in the context of an extant proceeding brought under Part 2 of the Act. A proceeding cannot be brought under s 89 alone. Accordingly, a plaintiff who invokes s 89 is caught by the limitation provisions of s 82(2). [93] Even if I am wrong in that however, my earlier finding that the plaintiff's claim is barred under the Limitation Act is, in any event, fatal to this argument.Commerce and Fair Trading Act: Separate Codes?[94] In his second cause of action the plaintiff alleges an unlawful means conspiracy involving breaches of the Commerce and Fair Trading Acts, and a variety of other torts: deceit, negligent mis-statement, actionable misrepresentation,interference with economic relations and abuse of public office by the eighth and ninth defendants. [95] The cause of action is underpinned by, and indeed founded upon, the alleged anti-competitive conduct of Gulf Harbour and the eighth and ninth defendants. In effect, it is a cause of action which relies on alleged contraventions of the Commerce Act and/or the Fair Trading Act, dressed up as a claim in tort. [96] Counsel for the defendants argue that such a pleading is an abuse of process intended, at least in part, to avoid the effect of the more stringent limitation provisions which apply to claims under those Acts. Counsel submit that the second cause of action ought to be struck out on that ground. I agree. [97] In Dickson Livestock Associates Ltd v Wrightson Ltd (1999) 6 NZBLC 102, 806 a Full Court of the High Court held that the Commerce Act and the Fair Trading Act were each codes which prohibited certain conduct, in the interests of promoting competition in markets (the Commerce Act) or in trade (the Fair Trading Act), providing significant remedies for breach and prescribing statutory limitation periods. Where a claim is founded on an alleged statutory breach, it must be brought under the statute, and not by way of a parallel claim in tort. The exclusive character of the remedies created by the Commerce Act and the Fair Trading Act has been underscored in such cases as Vector Ltd v Transpower NZ Ltd [1999] 3 NZLR 646 (CA) and Bomac Laboratories Ltd at [111]. [98] The particulars which appear in support of this cause of action at paragraph 92 of the statement of claim confirm the plaintiff's reliance on claimed statutory breaches. Accordingly this cause of action must be struck out on this ground also.Issue estoppel[99] Mr Judd submits that by reason of the judgment of Associate Judge Doogue delivered on 23 November 2005, an issue estoppel arose which prevented the parties from arguing limitation issues and irrevocably determined them in the plaintiff's favour.[100] The hearing before the Associate Judge was convened for the purpose of determining the plaintiff's application, pursuant to s 248 of the Companies Act 1993, for orders granting him leave to continue his proceeding against those corporate defendants (part of the Gulf Harbour Group), which had recently gone into liquidation. So the issue before the Associate Judge was a relatively confined one. He had before him what he called a "draft amended statement of claim", a document which I have located on the Court file. [101] Mr Judd refers to [62]-[69] of Associate Judge Doogue's judgment. They read:Are the claims clearly unsustainable[62] I have heard submissions from Mr Long, which call into question the validity of the claims brought by the plaintiffs against the defendants. [63] He submitted that the statutory grounds on which the plaintiff intends to bring some or all of his claims are not available because the legislation was not in force or effect at the time when the plaintiff asserts his cause of action arose. He also submitted that there is a limitation defence available to defendants one to eight in respect of cause of action four which concerns allegations of breach of the Fair Trading Act. [64] Then, in relation to the first cause of action, that all defendants breached provisions of the Commerce Act, there is again an argument open as to whether the claims are time-barred. [65] I am not prepared to conclude that the plaintiff's claims are unsustainable on these grounds alone. The question as to when any particular cause of action may have arisen could well be influenced by documents that emerge in the course of discovery. After all, the substance of the plaintiff's claim is that the defendants separately entered into arrangements that were inconsistent with and gave the lie to assurances that they allegedly made to the plaintiff that efforts were underway to attract America's Cup teams to Gulf Harbour. Similarly, the dealings between the Gulf Harbour defendants and the eighth and ninth defendants were allegedly carried on in an atmosphere of close confidentiality or even secrecy. That at least is the plaintiff's allegation. Because of that, there may well be some fluidity concerning the dates when the causes of action were alleged to have come into existence. It might eventually transpire that the plaintiff will find his way blocked by the problem about the statutory cause of action not being available to him because the law had not been enacted at the time when the events occurred or by limitation type defences. At that point, the defendants will have the right to bring a strike-out application and that will be the appropriate time for such matters to be ventilated. I would not be prepared to conclude that at this early stage inthe litigation that the defendants have demonstrated the additional claims as being "clearly unsustainable". [66] In any case, Mr Long accepted that the position about limitation is not quite so clear-cut in the light of the authority of Bomac Laboratories Ltd & Ors v F. Hoffman La Roche Ltd & Ors (2002) 7 NZBLC 103,627. In that case Harrison J made the following comments concerning limitation which are relevant here: [172] In my opinion the reasonable discoverability doctrine is an incremental creature. The principle is well recognised; its application must be determined on a case by case basis. It all comes back to the facts. I am satisfied that the reasonable discoverability doctrine should be read into s 82(2) on the facts as pleaded in Bomac's revised proposed second amended statement of claim. Accordingly I find against the international defendants on this alternative basis. [173] I should add that I regard the recent amendment to s 82(2) expressly incorporating the test of reasonable discoverability into the statute, as supporting my conclusion. [67] His Honour's reference to the recent amendment was to the insertion of a provision into the main Act by an amendment Act in 2001 of the following provision: 2. An action under sub-section (1) may be commenced within three years after the matter giving rise to the contravention was discovered or ought reasonably ought to have been discovered. [68] Mr Long's submission was that the plaintiff is unable to take advantage of that statutory amendment because his causes of action pre-date the amendment. However, the plaintiff may be able to argue that even without the statute he can rely upon a test of "reasonable discoverability". The plaintiff alleged that the asserted anti-competitive arrangements were cloaked in secrecy and that in those circumstances it is not surprising that the plaintiff was not able to discover the true nature of the agreement between the Gulf companies and the eighth and ninth defendants. This is not a matter that should appropriately be determined in the setting of an application under s 248 of the Companies Act for leave. But what I have said indicates that the limitation point so far as it relates to the first cause of action, takes the proceedings out of the category where they might be described as clearly unsustainable. [69] Mr Long, I believe, would accept that he was on even less strong ground in submitting that second and third causes of action (Deceit and Negligent Misstatement respectively) are "clearly unsustainable".[102] In Joseph Lynch Land Co Ltd v Lynch [1995] 1 NZLR 37, 40-41, the Court of Appeal discussed the concept of issue estoppel in the following terms:The expression "res judicata" means the matter has been adjudicated. The concept of res judicata is often applied to both cause of action estoppel and issue estoppel. Traditionally its use was confined to the former. Cause of action estoppel is different from issue estoppel which can arise where a plea of res judicata in the strict sense is not open because the causes of action are not the same: see 16 Halsbury's Laws of England (4th ed, reissue) (Estoppel) at para 977. Issue estoppel is concerned with the prior resolution of issues rather than causes of action. In the same paragraph of Halsbury as that referred to above, it is said that issue estoppel precludes a party from contending the contrary of any precise point which, having once been distinctly put in issue, has been solemnly and with certainty determined against him. Cross on Evidence (4th NZ ed, 1989) by Mathieson discusses issue estoppel at para 12.8 on p 315. The learned author cites the judgment of Lord Denning MR in Fidelitas Shipping Co Ltd v V/O Exportchleb [1965] 2 All ER 4, 9: '. . . within one cause of action, there may be several issues raised which are necessary for the determination of the whole case. The rule then is that, once an issue has been raised and distinctly determined between the parties, then, as a general rule, neither party can be allowed to fight that issue all over again.' There is an authoritative recent discussion of cause of action and issue estoppel in the House of Lords: see Arnold v National Westminster Bank plc[1991] 3 All ER 41 especially at pp 46 and 47 per Lord Keith of Kinkel. It is to be noted that both Halsbury and Lord Denning MR refer to the need for the point said to be the subject of the issue estoppel to have been raised in the previous litigation. Halsbury uses the phrase "distinctly put in issue" and Lord Denning spoke of "issues raised which are necessary for the determination".[103] The purpose of the issue estoppel principle is to ensure that litigants should not be twice vexed by the same claim or point. It is in the public interest that there be an end to litigation: Joseph Lynch at 42. [104] In my view no estoppel arises in the present case. In the first place it is plain that the Associate Judge deliberately refrained from making any findings in respect of limitation issues. The passage set out above is replete with qualifications, and towards the end of [65] he expressly notes that the defendants retain the right to bring a strike out application on limitation grounds. His approach is unsurprising given the confined nature of the issue before him.[105] In the second place, not all of the parties represented before me participated in the hearing before Associate Judge Doogue; only Mr Judd and Mr Long appeared. Those parties not represented cannot, in any circumstances, be bound by what occurred.Application to join Lochmara as a plaintiff[106] Mr Hook seeks to join Lochmara Ventures Ltd as a plaintiff. Joinder is opposed by the defendants. Mr Judd submits that it is appropriate for all entities suffering loss or damage as a result of the defendants' alleged conduct to be joined as plaintiffs, and that the Court should join all parties whose presence before the Court may be necessary effectually and completely to adjudicate and settle all questions involved in the proceedings: r 97; Duff v Communicado Ltd [1995] 3 NZLR 739. [107] Mr Stewart argues that the presence of Lochmara is not required to enable Mr Hook to recover anything to which he is entitled in his personal capacity, and Mr Long argues that the plaintiff does not allege that the defendants owed duties to Lochmara, either jointly with him, or at all. [108] A difficulty I have with this application is that there is nothing before me to indicate the cause or causes of action which Lochmara wishes to pursue. It is not named in the statement of claim and the only draft pleading produced simply names Lochmara as a plaintiff without identifying discrete causes of action upon which Lochmara wishes to rely. But more fundamentally and fatally, since Lochmara is a company of which Mr Hook is the director and shareholder, any claim it may wish to make in its own right must be statute barred because Mr Hook's knowledge is imputed to it. The application to join Lochmara is therefore dismissed. [109] Accordingly, it is unnecessary to consider the question of whether the joinder of Lochmara would involve a prima facie breach of Mr Hook's implied undertaking not to use documents discovered, for a collateral purpose: see Wilson v White (Undertaking) (2005) 17 PRNZ 537.Joinder of Hook Company defendants[110] Initially Mr Hook proposed to apply for joinder of Lodge, Nautilus and Judder Bar as additional plaintiffs. Each company is now in liquidation. Plaintiffs may be joined only with their consent. Consents are not currently available from the liquidators of the three companies concerned. Apparently there is some dispute over remuneration. Mr Hook believes there is some realistic prospect that new liquidators, amenable to joinder as plaintiffs of the companies concerned, may soon be appointed. In the meantime however, he sought an order joining the three companies as defendants. [111] That application was opposed by the existing defendants. Mr Judd sought to adjourn the application for joinder, but the adjournment application was also opposed. Ultimately he elected to withdraw the application, which I treat as abandoned.Summary[112] The plaintiff's first cause of action under the Commerce Act, and his fifth cause of action under the Fair Trading Act, are statute barred. Mr Hook ought reasonably to have discovered the matters giving rise to the alleged contraventions of those Acts well before 14 December 2002. Accordingly his claim is barred by s 82(2) of the Commerce Act and s 43(5) of the Fair Trading Act. Section 89 of the Commerce Act is also covered by that Act's limitation period and no cause of action can be independently brought under that provision. The Commerce and Fair Trading Acts operate as codes. In consequence, the second cause of action based on unlawful means conspiracy involving breaches of those Acts is struck out as being a duplication of the first and fifth causes of action. [113] The second cause of action based on unlawful means conspiracy, the third cause of action based on deceit, and the fourth cause of action based on negligent misstatement are tortious in character and are statue barred under the Limitation Act. Loss or damage flowing from those causes of action must have occurred at the latestby 28 April 1999, more than six years prior to the date of the statement of claim. Section 28 of the Limitation Act does not assist the plaintiff. No duty of disclosure existed between the parties, nor did the defendants deliberately conceal their conduct. The sixth cause of action based on promissory estoppel is likewise barred as it relies on essentially the same grounds as the tortious causes of action, and is therefore subject to the same time limits. The plaintiff is unable to rely on issue estoppel principles as a means of avoiding the application of the ordinary limitation rules. [114] The application to join Lochmara as a plaintiff is dismissed, and I treat the application to join the additional Hook Companies as defendants as abandoned. [115] Nothing in this judgment affects the plaintiff's right to pursue claims made in the second amended statement of claim. [116] Several issues not hitherto touched upon were the subject of detailed argument. They included, in particular, the question of whether Mr Hook had standing to bring claims which appeared to involve losses incurred by the corporate entities through which he operated. Issues of the type discussed in Christianson v Scott [1996] 1 NZLR 273 arose. Neither have I discussed Mr Goh's application under r 131. That is because my findings in respect of limitation matters render decisions on these other matters unnecessary. [117] Leave is however reserved to all parties to apply in respect of matters not resolved in this judgment. [118] It is necessary to give directions in respect of consequential matters. Counsel for the defendants are, on or before 16 March 2007, to file and serve memoranda which are to deal inter alia with the following matters: a) The precise orders which ought to be made following this judgment;b) Whether any issues not resolved in this judgment ought nevertheless to be resolved in the light of the findings already made, and if so, which; c) Costs. [119] Mr Judd is to file and serve any memorandum in reply on or before 30 March 2007. [120] Counsel are to indicate whether, in their view, it is necessary for them to be heard on any outstanding matter. If so, a hearing will be convened at a suitable time. If not I will deal with outstanding matters on the papers.C J Allan J