JONES v NEW ZEALAND BLOODSTOCK FINANCE & LEASING LTD [2022] NZCA 397

JONES v NEW ZEALAND BLOODSTOCK FINANCE & LEASING LTD [2022] NZCA 397 [25 August 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA350/2020[2022] NZCA 397BETWEEN GREGORY JOHN JONESAppellantAND NEW ZEALAND BLOODSTOCKFINANCE & LEASING LIMITEDRespondentHearing: 4 and 5 May 2022Court: Dobson, Thomas and Duffy JJCounsel: Appellant in personF A King and A Osama for RespondentJudgment: 25 August 2022 at 11.00 amJUDGMENT OF THE COURTA The application for leave to adduce further evidence is granted in part.B The appeal is dismissed.C The appellant must pay the respondent costs for a standard appeal on aband A basis and usual disbursements. We certify for two counsel.____________________________________________________________________REASONS OF THE COURT(Given by Dobson J)Table of contentsPara noThe parties [4]The contracts [6]High Court contractual analysis [14]Challenge to contractual analysis [18]Legal test for summary judgment [24]The evidence in the High Court [26]Further evidence on appeal [46]Fraud by NZB Finance? [66]Conspiracies against Mr Jones? [90]Other procedural issues [116]Costs [130][1] This is an appeal from a judgment granting the respondent (NZB Finance)summary judgment for amounts claimed from the appellant (Mr Jones) pursuant tocontracts by which NZBS advanced monies to fund Mr Jones' acquisitions of interestsin thoroughbred horses.1 Demands for repayment of the advances had been made inMarch 2019. Proceedings to recover the amounts outstanding were commenced inearly September 2019 including an application for summary judgment. The hearingon the summary judgment application was conducted on 26 May 2020 and on 5 June2020 Jagose J delivered his decision, granting NZBS summary judgment for theamount of $431,632.22 plus interest and costs.[2] The proceedings have a somewhat protracted history with steps both beforeand after the summary judgment hearing. The procedural history will be addressed tothe extent it is relevant, as it arises on issues argued in the appeal.[3] Mr Jones challenges the Judge's decision to grant summary judgment on threebroad sets of grounds. The more confined of these is that the contracts wereunenforceable either because NZB Finance breached obligations to disclose the termsof the contracts, or because NZB Finance's conduct was oppressive. It is convenientto deal with the contractual terms and challenges to their enforceability first before1 New Zealand Bloodstock Finance & Leasing Ltd v Jones [2020] NZHC 1233 [Judgment grantingsummary judgment].assessing the larger set of challenges raised by Mr Jones' second set of grounds.Those are wide ranging allegations that NZB Finance committed fraud and was a partyto conspiracies. Mr Jones contends that these constitute tenable claims qualifying foran equitable set-off in circumstances that require NZB Finance's claims to go to trial.Finally, Mr Jones criticises Jagose J's determination of applications by Mr Jones for astay or dismissal of NZB Finance's summary judgment application, and foradjournment of the summary judgment hearing.2The parties[4] Mr Jones is a senior Auckland lawyer. He has practised in partnershipspecialising in insurance law for some 40 years and, since 2018, he has practised atthe independent Bar. Mr Jones describes himself as having expertise in thethoroughbred breeding industry that represents a longstanding interest and businessfor him.[5] NZB Finance is in the business of providing finance for the purchase andbreeding of horses. It and the group of companies of which it is a member is adominant player in the New Zealand thoroughbred industry. Although there was nospecific evidence on it, there was also no dispute that the ultimate ownership andcontrol of the New Zealand Bloodstock group of companies is held by the Vela familywho are active in the thoroughbred racing industry.The contracts[6] On 23 May 2016 Mr Jones and NZB Finance entered into a contract for currentadvances (CCA) pursuant to which NZB Finance would advance monies to Mr Jonesby way of provision of credit with an initial limit of $200,000. Advances under theCCA were repayable in full on 30 June 2017 or upon demand being made. Mr Jones2 Mr Jones takes issue with two decisions of Jagose J: New Zealand Bloodstock Finance & LeasingLtd v Jones HC Auckland CIV-2019-404-1822, 20 May 2020 (Minute of Jagose J) [20 MayMinute], in which Jagose J declined an application to stay or dismiss NZB Finance's summaryjudgment application, leaving such issues to be determined "at or after the substantive hearing";and Jagose J's decision on an application by Mr Jones on 25 May 2020 to stay the summaryjudgment application and adjourn the hearing [25 May 2020 decision]. In respect of the 25 May2020 decision, there is no minute before us, but it is clear that Jagose J decided he would deal withthe arguments at the hearing. Both the 20 and 25 May 2020 applications were declined by Jagose Jin the Judgment granting summary judgment, above n 1, at [42].was to provide security for the advances over the interests in horses acquired by him.The terms of the CCA contemplated that a schedule identifying the interests in horsesto which the security would relate would be updated from time to time but that wasnot done, at least not exhaustively.[7] Advances were made under the CCA from time to time. In January 2018Mr Jones sought to borrow further monies under it but NZB Finance was not preparedto allow that and advised that he should sell a share he then held in a stallion(Reliable Man) to reduce the extent of his debt. Mr Jones did not follow that advice.[8] Meanwhile, in October 2017 Mr Jones and NZB Finance entered a lease topurchase agreement (LTP) in relation to a mare called Woodpecker Hill. The terms ofthe agreement involved NZB Finance funding the purchase of Woodpecker Hill for$44,000 plus GST and retaining title to the mare until completion of payments.Mr Jones was to make rental payments of $14,056.96 each in July 2018, July 2019and July 2020 with payment of a residual $11,000 in October 2020, after which titleto the mare would pass to Mr Jones. The payments included interest calculated at 10per cent per annum. Mr Jones assumed control of Woodpecker Hill but did not makeany of the payments under the LTP.[9] In mid-September 2018 Mr Jones acknowledged in an email to NZB Financethat he was "stitched for cash" and requested an extension of the CCA facility for afurther year. NZB Finance outlined the terms on which it would be prepared to extendthe facility but none of those were acceptable to Mr Jones. He was urged to sellinterests he had in horses to reduce the amount owing under the facility, but declinedto do so.[10] On 28 November 2018 there were exchanges of emails between Mr Jones andMr Fraser with whom he was dealing at NZB Finance. Mr Jones questioned theentitlement of NZB Finance to retain the proceeds of sale of an interest in a horse,Athenri, that he owned where the proceeds were in the hands of an affiliate of NZBFinance. Mr Fraser set out in one of his emails the amount owing under variousaccounts maintained under both the CCA and the LTP.[11] The same day Mr Jones responded to Mr Fraser including the following:I accept that those are the figures on the face of the contracts we entered intobut I have been taken to the position where I am unable to accept they are dueand owing. I do not believe [NZB Finance] have dealt with me in a fair andconscionable manner as they are bound to as amateur [sic] of contract. This inmy opinion places those figures into the position of being genuinely disputeddebts.The retaining of funds from the sale of athenri is just another knowing act inrespect of our relationship I am afraid.[12] In March 2019 Mr Jones retained an insurance payment of $50,000 plus GSTon a mare that had died and refused to account to NZB Finance for it in reduction ofthe amounts outstanding. At the end of March 2019 NZB Finance issued a notice ofdemand which overstated the amounts then outstanding. The error in the amounts wasaddressed in a revised notice of demand served on Mr Jones on 26 April 2019, recitingthe outstanding debt at that time of $369,800.22 under the CCA.[13] On 26 April 2019 NZB Finance served Mr Jones with a notice of default underthe LTP seeking payment of the amounts by then outstanding of $22,718.08.No payments were made by Mr Jones and thereafter all amounts owing under the LTPfell due, constituting a debt of $61,832.High Court contractual analysis[14] Jagose J dealt quite shortly with the prospect of any grounds that might beavailable to Mr Jones to resist enforcement of the contracts on their terms.He dismissed the prospect of any failure by NZB Finance to comply with initialdisclosure requirements. This was addressed as follows:3[25] Although the advances contract included a section titled "Initialdisclosure" made with reference to s 17 of the Credit Contracts and ConsumerFinance Act 2003, that section only applies to "consumer credit contracts", for"the credit to be used, or intended to be used, wholly or predominantlyfor personal, domestic, or household purposes". Mr Jones' own evidence isthe advances were sought to be used for his thoroughbred breeding business.Section 17 has no application.3 Judgment granting summary judgment, above n 1.[15] The Judge also dismissed the prospect of any representation by NZB Financethat it would not require compliance with the contractual payment obligations for aperiod of years which would prevent NZB Finance from enforcing the terms of thecontracts in issue. The Judge noted that there was almost no evidence from eitherMr Jones or NZB Finance of his dealings with Mr Gwyn who was the finance managerat NZB Finance with whom Mr Jones dealt when both contracts were entered into.4[16] The Judge found it inherently improbable that a commercial trading operationsuch as NZB Finance would waive its contractual entitlements to recover amountsfrom Mr Jones for five to seven years. The Judge considered it was equallyimprobable that a person of Mr Jones' legal and business experience would haveentered into written contracts intended to sustain his business for five to seven years,when those contracts contained express requirements for earlier periodic and unilateralon-demand repayment.5[17] The Judge also dismissed the prospect that Mr Jones could raise a defenceunder ss 118 and 120(b) of the Credit Contracts and Consumer Finance Act 2003(CCCFA), on grounds that NZB Finance's conduct was oppressive, harsh, unjustlyburdensome, unconscionable or in breach of reasonable standards of commercialpractice.6Challenge to contractual analysis[18] Mr Jones' notice of appeal included as one of 14 grounds of challenge to thejudgment that Jagose J had not addressed NZB Finance's failure to disclose as required"in terms of the [CCCFA]". This criticism was not addressed in Mr Jones' writtensubmissions, or orally. In any event, the Judge's characterisation of the contract asfalling outside the definition of a "consumer credit contract",7 and therefore not beingsubject to the requirements for initial disclosure in s 17 of the CCCFA inarguablydisposes of the point.84 At [28].5 At [36].6 At [35].7 Credit Contracts and Consumer Finance Act 2003, s 11.8 Judgment granting summary judgment, above n 1, at [25].[19] Mr Jones did advance arguments on appeal that the nature of his dealings withNZB Finance personnel led to a mutual recognition that establishment of hisbloodstock business would take a period of years substantially longer than thecontractual terms for the advances, arguably leading to an acceptance by NZB Financethat it either could not or should not seek to enforce the repayment obligationsstipulated in the contracts.[20] In the course of his oral submissions, Mr Jones accepted that there was noevidence of any written or oral representation by those with whom he dealt atNZB Finance, to the effect they would not enforce the repayment obligations inaccordance with the contracts. Nonetheless he contended that his evidencedemonstrated an ongoing business relationship, and that it would be inconsistent withthe basis of this relationship to insist on repayment when industry standards recognisedthat establishment of a thoroughbred breeding business took a period of five to sevenyears.[21] We are satisfied that there is no prospect of Mr Jones mounting a defence inthe nature of estoppel or variation of contract that would constrain NZB Finance'sentitlement to enforce the contracts on their terms. Mr Jones' notice of appeal cited acriticism that the Judge had failed to consider his claims that NZB Finance was guiltyof oppressive conduct. This point was not addressed in his submissions and from areview of the extensive dealings between Mr Jones and NZB Finance, we are satisfiedthat no tenable basis for a claim of oppressive conduct could be made out.[22] On that basis, Mr Jones would only be able to resist enforcement of thecontracts if he demonstrated there was a tenable prospect of the entry into one or bothof the contracts being induced by fraud. That prospect is the subject of the largeraspect of Mr Jones' challenges to the judgment, namely that he had a tenable claimagainst NZB Finance for fraud or participation in unlawful conspiracies against himconstituting grounds for an equitable set-off.[23] We accordingly proceed to deal with the broader grounds for resistingsummary judgment, from the premise that we can find no error in the Judge's decisionthat the contracts are otherwise enforceable on their terms.Legal test for summary judgment[24] Mr Jones submitted as a matter of law that all he needed to do to resistsummary judgment was to persuade the Court that it could not be certain there was noprospect of his making out claims of fraud and/or conspiracy. Mr Jones submitted thatthis proposition was consistent with the approach adopted by this Court, asexemplified in the following statement of principle in Krukziener v Hanover FinanceLtd:9[26] The principles are well settled. The question on a summary judgmentapplication is whether the defendant has no defence to the claim; that is, thatthere is no real question to be tried. The Court must be left without any realdoubt or uncertainty. The onus is on the plaintiff, but where its evidence issufficient to show there is no defence, the defendant will have to respond ifthe application is to be defeated. The Court will not normally resolve materialconflicts of evidence or assess the credibility of deponents. But it need notaccept uncritically evidence that is inherently lacking in credibility, as forexample where the evidence is inconsistent with undisputed contemporarydocuments or other statements by the same deponent, or is inherentlyimprobable. In the end the Court's assessment of the evidence is a matter ofjudgment. The Court may take a robust and realistic approach where the factswarrant it.[25] This is a case in which the creditor can make out its entitlement to enforce thecontracts, leaving the Court without any real doubt or uncertainty about theirenforceability. Where summary judgment is resisted, as here, on the basis of aqualifying form of counterclaim, then the evidential onus shifts to the opponent ofsummary judgment to make out a credible basis for a qualifying counterclaim orset-off.10 The essential issue in the appeal is whether the accumulation of incidentsand suspicions deposed to by Mr Jones demonstrates the existence of a potentiallytenable cross-claim.The evidence in the High Court[26] Mr Jones has filed a number of affidavits in these proceedings. The followingsummary describes the substantive affidavits filed in the High Court, omittingreference to formal affidavits filed by Mr Jones confirming procedural steps taken withno narrative content. Mr Jones filed an initial affidavit in support of his opposition to9 Krukziener v Hanover Finance Ltd [2008] NZCA 187, (2008) 19 PRNZ 162 (citations omitted).10 McGrouther v Paulden HC Christchurch CIV-2010-409-1124, 7 December 2010 at [15].the summary judgment application on 13 November 2019. It deposed to his havingaccepted instructions to act for a Mrs Twyname in 2004 in advancing her claim againstMr David Ellis for failure to account to her as owner of an interest in a racehorse thathad been sold. Mr Jones characterises Mr Ellis as a leading figure in the New Zealandthoroughbred industry. He deposed to a belief that his preparedness to act againstsenior figures in the New Zealand thoroughbred racing industry, alleging improperbehaviour against them, caused animosity towards him as someone who was preparedto stand up to those who controlled the industry. Mr Jones cited that perceivedanimosity towards him as persisting throughout the period of the contracts in issue,resulting in a number of instances of his interests in the bloodstock industry beingsabotaged by others.[27] Mr Jones' original affidavit also alleged that Mr Rolston, the sales manager atNZB Finance had threatened Mr Jones and was involved in a scheme to repeatedlyunsettle Mr Jones including by injuring a colt belonging to him. A further componentof the complaints was that he was induced to purchase the mare Woodpecker Hill(the subject of the LTP) in reliance on a fraudulently inflated valuation provided byMr Rolston.[28] On 14 February 2020 Mr Jones filed a second narrative affidavit described asbeing in support of an application for orders that evidence be taken orally at the hearingof the summary judgment application. It was also endorsed as being in opposition tosummary judgment. That affidavit began with a further explanation of thecircumstances in which he had acted for Mrs Twyname against Mr David Ellis.Mr Jones described the thoroughbred industry as attributing considerable significanceto the controversy that Mrs Twyname's claim would cause. He perceived there beingconcerns for the New Zealand racing industry and particularly Mr Ellis, which causedantipathy towards him. Mr Jones believes that "[f]rom that point in time [his] lifechanged".[29] The 14 February 2020 affidavit included allegations by Mr Jones of collusionand deliberate injuring of his horses. He alleged a specific threat from Mr Rolston ofNZB Finance, followed immediately by a severe gash to the leg of one of Mr Jones'horses. Further, Mr Jones alleges that a foal born to one of his mares, which he ownedin a partnership, "was left dead at birth in retribution" for his partner's attempt tocontinue racing the mare the previous season. Mr Jones states his belief thatMr Rolston "completely disagreed" with the decision to continue racing the mare, andthat Mr Jones "thought something might happen and it did".[30] The 14 February 2020 affidavit also included a comparison of Mr Rolston'svaluation for Woodpecker Hill with one obtained by Mr Jones from aMr Adrian Clark, a registered bloodstock valuer. Mr Jones annexed copies of thosevaluations to his affidavit. In contrast to the $45,000 valuation of the mare byMr Rolston as at September 2017, Mr Clark had valued the mare in February 2020, asat August 2018, at $1,500. Mr Jones stated in a later affidavit that after providing thatvaluation Mr Clark had declined to assist further, so Mr Jones sought an order that hebe subpoenaed to address his valuation in oral evidence.[31] Mr Jones' allegations of deliberate harm to his horses included allegations thata colt by the stallion Reliable Man was deliberately mistreated betweenNovember 2017 and January 2018. Mr Jones believes that those involved deliberatelyavoided undertaking an ultrasound which would have identified the form of injury tothe colt and enabled a prompt remedy. Instead, the colt was left without such treatmentfor a period. Mr Jones took advice from Professor Ben Ahern, a professor ofveterinary science at the University of Queensland. Although not waiving privilege inthe content of that advice, Mr Jones' affidavit implied that Mr Jones' analysis of thecircumstances of harm to the Reliable Man colt was confirmed by Professor Ahern.[32] Mr Jones deposed that having had useful indications from the Professor hismore recent request for an affidavit had drawn no response. Mr Jones inferred thewithdrawal of cooperation by the Professor was caused by industry pressure not totake Mr Jones' side against industry interests. Accordingly, Mr Jones also sought anorder requiring the Professor to be required for oral evidence to address the issue aboutwhich he had given Mr Jones initial views.[33] Mr Jones' application for leave to adduce further evidence, including the issueof subpoenas, was dealt with by Peters J in a judgment of 6 March 2020.11 The Judge11 New Zealand Bloodstock Finance & Leasing Ltd v Jones [2020] NZHC 431 [Evidence judgment].granted leave to rely on the 14 February 2020 affidavit at the summary judgmenthearing, subject to reserving to NZB Finance the entitlement to challenge admissibilityof various parts of its content.12 The Judge also granted leave for Mr Jones to file andserve an affidavit from Mr Clark on his valuation of Woodpecker Hill, which was tobe completed by 17 March 2020.13[34] As to Mr Jones' application under r 9.75 of the High Court Rules 2016 for anorder that Professor Ahern attend the hearing for the purpose of giving evidence, theJudge held that there was insufficient evidence of a request for the Professor (or anyother veterinarian) to provide an affidavit, and the requisite refusal by the Professor(or any other veterinarian) to do so. Her Honour adjourned that "aspect of Mr Jones'application to enable him to adduce evidence of request and refusal and ideally ofmore than one veterinarian".14 The Judge also cautioned that Mr Jones would needmore to establish the relevance of the proposed evidence given NZB Finance's denialof any sufficient connection with or control over the Waikato stud, Wentwood Grange,at which the colt had allegedly been deliberately mistreated.15[35] On 8 May 2020 Mr Jones filed a further affidavit that was described as beingin support of his interlocutory application to have evidence taken orally and for itscontent to be considered in support of his opposition to summary judgment.In addition the affidavit advanced his claimed entitlement to an award of costs as aself-represented barrister should he be successful in defending the application forsummary judgment. Mr Jones described the affidavit as reflecting his considerationof comments and directions made in the judgment of Peters J. It also includedresponses to the submissions by then served by NZB Finance in support of itsapplication for summary judgment.[36] The 8 May 2020 affidavit made further references to Mr Jones' involvement inacting for Mrs Twyname, this being the third affidavit in which those factual matterswere addressed. He also traversed allegations previously raised that NZB Financewere influential in ensuing that his colt by the stallion Deep Field did not receive a bid12 At [7].13 At [11].14 At [18].15 At [19].when included in a sale. He disputed evidence in reply on behalf of NZB Financewhich had denied a connection between NZB Finance and Wentwood Grange.He alleged Wentwood Grange and NZB Finance were jointly involved in injuring oneof his colts in 2016. He deposed to his belief that his conduct in the Twyname litigationresulted in the dissolution of his then legal partnership. He also traversed unsettlingreversals in numerous personal relationships which Mr Jones claims had resulted frompressure on family, friends and legal colleagues from NZB Finance or other interestsaligned with it.[37] As to the need for a subpoena of Mr Clark, Mr Jones' 8 May 2020 affidavitcited correspondence with Mr Clark from 12 March 2020, in which Mr Clarkexplained why he would not be further involved in the proceedings. Mr Jonesattributed to Mr Clark a statement that he stood by the valuation he had provided forWoodpecker Hill but that Mr Clark had no desire to get into the middle of the disputewhere one party was a company that he needed to have "a happy relationship with".Mr Jones cited that as justification for requiring a subpoena on the issue of thecontrasting valuations of Woodpecker Hill. Mr Jones also deposed to further dealingswith Professor Ahern, which had concluded with Professor Ahern advising Mr Jonesthat he was unable to assist Mr Jones any further. Mr Jones deposed to otherunsuccessful attempts to obtain expert evidence from veterinarians to support hisclaims, leading to his belief that no veterinarian would assist him other than pursuantto a subpoena.[38] On 25 May 2020 (the day before the summary judgment application was to beheard) Mr Jones filed a fourth substantive affidavit. This affidavit was also describedas being in opposition to the summary judgment application, and in support ofMr Jones' application for a stay of proceedings and an adjournment of the summaryjudgment hearing. Notwithstanding an acknowledgement of the constraints onevidence in opposition to summary judgment applications, Mr Jones detailed furtherexamples of his experiences with veterinarians and others caring for his horses,described as "inappropriate behaviour".[39] Mr Jones also described a specific discussion with Mr Ellis that he had recentlyrecalled, and which he treated as indicative of an intention by Mr Ellis to harmMr Jones' thoroughbred business. The affidavit made one further reference to theTwyname proceedings, and attached a copy of the home page from the NZB Financewebsite to illustrate the interconnected nature of the various companies in its group.[40] He also reported on investigative steps being undertaken (apparently for thepurposes of other proceedings against the veterinary service involved) to establish thata diagnosis of one of his horses was aberrant. Mr Jones deposed that this had got tothe stage of a draft affidavit from another Queensland expert,Dr François-René Bertin. Other than deposing to the imminent availability of anaffidavit from Dr Bertin, the 25 May affidavit did not specifically address reasons whythe summary judgment application ought to be stayed or an adjournment of the hearingbe granted.[41] NZB Finance objected to substantial portions of the evidence Mr Jones soughtto rely on in opposing summary judgment. NZB Finance submitted that the evidencedid not meet the requirement for relevance to the issues raised by its summaryjudgment application, and that substantial components of the evidence wereinadmissible hearsay and opinion.[42] Jagose J dealt with the objections to the challenged evidence after concludingthat the summary judgment application succeeded and that there were no grounds foradjournment, stay or dismissal of it.16[43] The Judge recognised that a party challenging evidence on the grounds that itlacked relevance faced a more difficult task in summary judgment applications than attrial.17 He saw greater latitude as being appropriate where a defendant mustdemonstrate that there is an issue of fact or law that ought to be determined at asubsequent trial. The Judge concluded on the evidentiary challenges in the followingterms:18[41] On that basis, I am not minded to determine the objections toadmissibility. I accept, even with the latitude I have expressed, Mr Jones'affidavits extend well beyond the factual expression of what he saw, heard, or16 Judgment granting summary judgment, above n 1, at [38].17 At [40].18 At [41].knew. But no purpose now is served in excluding any aspect of his evidence.I have given it the weight it deserves.[44] There was no clarification from the Judge on the weight he had given toMr Jones' evidence. The terms in which the Judge assessed all the evidenceare consistent with his accepting Mr Jones' recollection of matters of which he hadfirst-hand knowledge by direct observation, but a high level of scepticism about thevery extensive inferences that Mr Jones sought to draw from matters within hispersonal knowledge. The Judge's findings suggest that he would not have acceptedthat a factual basis had been made out to raise a tenable claim for fraud or conspiracyagainst NZB Finance.[45] However, the extent of analysis of the evidence was confined because of theJudge's finding that any cross-claim Mr Jones could establish against NZB Financefor harm to his economic interests was not interdependent with NZB Finance's claimsfor repayment of its advances to Mr Jones. The Judge found that there would benothing unfair or unjust about determining NZB Finance's claim without takingMr Jones' intended cross-claim into account.19 We return to that finding, with whichwe respectfully disagree, below.20 At this point we recognise that it rendered anycloser analysis of the admissibility, or credibility of Mr Jones' extensive evidenceunnecessary.Further evidence on appeal[46] Mr Jones sought leave to adduce further evidence and filed a new affidavit inthis appeal dated 17 December 2021. Mr Jones described the evidence as covering awide range of issues relating to the background to the dispute between him andNZB Finance. The principal annexure to the affidavit was an unsworn affidavitcompleted by Mr Jones in proceedings he had commenced in the Auckland HighCourt, seeking an interim injunction against 16 named defendants and furtherunnamed defendants.21 In that proceeding Mr Jones sought relief in respect of acts of19 At [37].20 See [64] below.21 Venning J struck out some of the claims, and stayed the others pending Mr Jones filing an amendedpleading in proper form: Jones v New Zealand Bloodstock Finance and Leasing Ltd[2021] NZHC 3220 at [34]–[36].conspiracy, breaches of privacy and harassment allegedly committed by thedefendants. The annexures to that affidavit include his affidavits completed in thepresent proceeding on 13 November 2019, and 8 and 25 May 2020. Also annexed areaffidavits completed in October 2019 in support of an application for discovery inother proceedings, affidavits completed in September 2020 seeking to set aside abankruptcy notice that had issued and to pursue a challenge to a Registrar's decisionsealing judgment in respect of the judgment presently under appeal.[47] The unsworn affidavit intended for Mr Jones' interim injunction proceedingsincludes narrative running to more than 32 pages. It describes incidents involvinginteractions with Mr Jones by each of the named defendants. Mr Jones attributes anintention by those persons to either take steps adverse to his personal or financialsecurity, or to warn him off pursuing initiatives against imprecisely identifiedpersonnel in the thoroughbred industry. In each case Mr Jones deposes to a convictionthat conduct he perceives as otherwise inexplicable was undertaken deliberately toharm his interests.[48] An example of the matters narrated in the unsworn affidavit is Mr Jones'reconstruction of events surrounding his despatch of a Tivaci–Adalia22 filly toQueensland for sale in the Magic Millions sale there. Mr Jones asserts that the fillywas in good condition when she left New Zealand, and presumably continued to be insuch condition when sold for $30,000 after passing through the sale ring.Shortly afterwards the auctioneer's agent advised Mr Jones that the sale could not goahead at other than a very reduced price because of an injury that had occurred to thefilly. Mr Jones assumes that the injury was inflicted deliberately. He does not identifythose responsible or how the injury was inflicted and his description does nothing todispel the alternative prospect that the injury was caused accidentally. He treats it asan example of "people" in the racing industry considering they can freely carry outsuch acts with impunity. He states "[t]hat was a clear and intended outcome fromJustice Jagose['s] decision [in the judgment under appeal]".22 The filly was sired by the stallion Tivaci, out of the mare Adalia. We use the format [sire]–[dam]when referring to the pedigree of horses throughout this judgment.[49] All these allegations are extremely speculative, and except by drawing the mosttenuous of connections between incidents that otherwise appear unrelated, theindividual observations would appear to be capable of innocent explanations. A smallnumber of the individuals criticised are either directly or indirectly related toNZB Finance. For the most part however, criticisms relate to Mr Jones' former wifeand her sister, former staff in his law firm and former friends in the law.[50] On 27 April 2022 Mr Jones sought leave to adduce yet further evidence for thehearing of the present appeal. The items included a video showing a horse being ledfrom its stall in a larger stable, walked briefly around the entrance to the stable andreturned to its stall. The horse is walking with obvious difficulty in its rear left leg.Mr Jones' commentary on that video is that it shows a horse of his having been injuredwhilst being prepared for sale.[51] Mr Jones sought leave to adduce as evidence on the appeal the statement ofclaim in the High Court proceedings described in paragraphs [46] and [47] above, thejudgment of Venning J in that proceeding that was critical of the terms of his statementof claim,23 and further documents filed in that proceeding in response to Venning J'sjudgment.24 He also sought leave to adduce as evidence a judgment of van Bohemen Jin other proceedings in the High Court at Auckland to which he is a party,25 plusadditional documents filed in that proceeding. Finally, he sought leave to adducecorrespondence from the New Zealand Law Society Lawyers Complaints Serviceraising concerns about Mr Jones' conduct as a practitioner.[52] Mr Jones wished to cite some or all of these documents as examples ofconspiracies against his interests having spread to the High Court judiciary.Consistency in the reasoning of findings adverse to his interests by a number of judgesis treated by Mr Jones as evidence of a conspiracy existing among those members ofthe judiciary, to be biased in rulings adverse to his interests.23 Jones v New Zealand Bloodstock Finance and Leasing Ltd, above n 21.24 Mr Jones made applications for recall and recusal which were unsuccessful: seeJones v New Zealand Bloodstock Finance and Leasing Ltd [2021] NZHC 3371.25 Jones v Stace Hammond Lawyers [2022] NZHC 47.[53] There can be no possible relevance in these documents produced in otherproceedings in which Mr Jones is a party, in determining any relevant issues arisingon the present appeal. There is no possible foundation for a claim that Jagose J wasinfluenced in any way by bias against Mr Jones so the first link in a chain of possibleallegations of a judicial conspiracy to harm his interests could not be made out, withthe consequence that the conduct of other Judges is entirely irrelevant.[54] In opposing all of the evidence sought to be adduced by Mr Jones apart fromthe initial affidavit in support of his opposition, Mr Osama (who presented the oralsubmissions on this aspect) acknowledged that admission of "wide-sweepingallegations" advanced by Mr Jones would not benefit Mr Jones' case. The successivelayers of Mr Jones' narrative of his suspicions that steps have been taken intentionallyand maliciously to harm him instead serve, on Mr Osama's submission, to stronglyenhance the grounds for finding that Mr Jones' allegations are entirely incredible andunable to be taken seriously.[55] Nonetheless, Mr Osama maintained that none of the proposed evidence camenear to qualifying for admission, given that it failed the requirements to be fresh,cogent and relevant.[56] Mr Jones submitted repeatedly that all of the evidence was entirely cogent, andrelevant to make out the prospect of a wide-ranging conspiracy or conspiracies — allof which had, on his analysis, some measure of connection to NZB Finance. Mr Jonesargued that the Court had to have regard to the evidence to afford him a proper hearingon the issue of whether Mr Jones had an available set-off.[57] In a minute issued the week before hearing, this Court indicated that it wouldconsider the application to adduce additional evidence as part of the hearing of thesubstantive appeal. That minute stated that, in the event the Court did admit additionalevidence on matters where there was a prospect NZB Finance would be prejudiced bythe absence of an opportunity to respond to it, then that opportunity would beafforded.2626 Jones v New Zealand Bloodstock Finance & Leasing Ltd CA350/2020, 26 April 2022 (Minute ofDobson J).[58] We did not stop Mr Jones ranging widely in his references to all of theevidence, given that the Court would be in a better position to assess the grounds foradmissibility of the additional evidence once it could be measured in light of all thearguments on appeal.[59] Mr Jones could have included in the authorities he relied upon judgments inother proceedings in which he is a litigant. Other documents generated in thoseproceedings and his observations about the conduct of the Judges presiding in themare entirely irrelevant and accordingly inadmissible.[60] Recollections of dealings with his family members and friends could only beclaimed as having peripheral relevance if Mr Jones laid some foundation for theproposition that they were parties to conspiracies against him that includeNZB Finance. We are satisfied that no such connection could possibly be establishedand accordingly rule inadmissible on grounds of irrelevance the references to theconduct of and attitudes attributed to Mr Jones' family and friends.[61] Adopting the most liberal approach to the possible relevance of the evidenceto Mr Jones' claims of a conspiracy or fraudulent conduct harmful to him, we are notprepared to rule inadmissible the various narratives about the statements and conductof other persons involved in the thoroughbred industry. In doing so, we treat thecircumstances of this case as unusual and adopt what would in many cases be anunduly lenient approach to admissibility, essentially because the overall breadth ofMr Jones' suspicions is potentially relevant to an assessment of the credibility of hisclaims, as Mr Osama recognised. We do not intend to alter in any way the rigour ofthe test for relevance of evidence under ss 7 and 8 of the Evidence Act 2006, in anyother context.[62] In light of Mr Osama's submissions opposing the admission of this evidenceand our views on the quality of it, we are satisfied that we can complete our analysisof the prospects of causes of action sought to be advanced by Mr Jones, withoutaffording NZB Finance an opportunity to respond to the matters raised in Mr Jones'various affidavits.[63] During oral argument Mr Jones agreed that analysis of the prospects for claimssuch as he seeks to raise can be substantially helped by a party in his positionindicating the basis for such claims by filing a draft counterclaim. That was not donein this case. Assessing the prospects for any such claim is not helped by the extent ofdiscursive narrative from Mr Jones in his numerous affidavits, drawing on suspicionsthat steps were taken intentionally to harm him in disparate instances. That difficultyis greater when assessing the prospects of unlawful conspiracies, than it is whenassessing the grounds cited by Mr Jones for a claim of fraud. In all such claims, therewould be a need for particularity in pleading as to knowing and intentionalinvolvement by individuals in unlawful conduct.[64] As noted at [45] above, the prospects of such claims were dismissed by theJudge on the basis that such claims could not in any event qualify for equitable set-off.The Judge found that Mr Jones' contention of liabilities owed to him by NZB Financewere "not interdependent".27 We respectfully disagree with the Judge on this point.When determining whether a claim qualifies for set-off, the test is whether the claim"so affects the plaintiffs' claim that it would be unjust to allow the plaintiff to havejudgment without bringing the cross-claim into account".28 The claims must be"interdependent".29 We accept Mr Jones' submission that, at least in respect of a claimfor fraud inducing the LTP, where any such cause of action arose out of the dealingsbetween the parties in relation to a contract sought to be enforced by NZB Finance,then a connection would arguably be sufficiently close and relevant for the proposedclaim to qualify for an equitable set-off.[65] In summary, we grant Mr Jones' application to adduce further evidence in part,taking the liberal approach to the relevance of Mr Jones' proffered evidence which wehave described at [61] above. We have ruled inadmissible Mr Jones' observationsabout the conduct of Judges in other proceedings in which he is a litigant and otherdocuments generated in those proceedings, along with Mr Jones' recollections of27 Judgment granting summary judgment, above n 1, at [37].28 Grant v NZMC Ltd [1989] 1 NZLR 8 (CA) at 12–13.29 Grant v NZMC Ltd, above n 28; Property Ventures Investments Ltd v Regalwood Holdings Ltd[2010] NZSC 47, [2010] 3 NZLR 231 at [68]–[69]; and Gilbert v QSM Trustees Ltd and BodyCorporate 162791 [2016] NZSC 61, [2018] 1 NZLR 1 at [48]–[54] per William Young andGlazebrook JJ, citing Body Corporate 162791 v Gilbert [2015] NZCA 185, [2015] 3 NZLR 601at [67]–[72].dealings with his family members and friends. We have ruled admissible the variousnarratives deposed to by Mr Jones about the statements and conduct of other personsinvolved in the thoroughbred industry. We approach the assessment of Mr Jones'claims of fraud and conspiracy on that basis, and in light of our conclusion at [64]above.Fraud by NZB Finance?[66] Mr Jones seeks to argue that he was induced to enter the LTP by a fraudulentvaluation provided by Mr Rolston for Woodpecker Hill at $45,000. Mr Jones arguesthat he entered into the LTP in reliance on that representation. The law on such a claimis straightforward and was not addressed by either party. If a fraudulentmisrepresentation induced Mr Jones to enter the contract, he should have rights todamages or to cancel the contract.30 A fraudulent misrepresentation is a knowinglyfalse statement made intending that it be relied upon.[67] Mr Jones did not advance arguments on the prospect of liability in tort fordeceit as an alternative. If that were to be pleaded, then the requirements to make outa false representation of past or existing fact, and that the maker of the representationknew it to be untrue or had no belief in its truth, or was reckless to its truth, wouldarise.31 The valuation of a horse is quintessentially a matter of opinion.[68] In September 2017 Mr Jones had available to him a service by the stallionZacinto. The service fee for Zacinto was $12,000 but unless Mr Jones used thestallion's service, that value would be lost to him. He did not then have an appropriatemare to put the stallion to. In liaison with NZB Finance, Woodpecker Hill wasidentified as an appropriate mare. Mr Jones has deposed that he was somewhat waryof the price that was being discussed for the purchase of Woodpecker Hill andaccordingly requested a valuation from NZB Finance. The valuation was provided byMr Rolston, dated 21 September 2017. It was addressed to Mr Jones and indicatedthe valuation was done after review of the pedigree, performance and recent salesresults, with the caveat that Mr Rolston had not inspected the horse so assumed "he"30 Contract and Commercial Law Act 2017, ss 35 and 37.31 Amaltal Corporation Ltd v Maruha Corporation [2007] 1 NZLR 608 (CA) at [46]–[50].was in "good health and free from any injury or illness". On those criteria Mr Rolstonvalued the mare at $45,000 exclusive of GST, on the following stipulations:Many factors including market fluctuations can cause discrepancies betweenappraised values and actual sale prices, and the value can vary over time.Therefore the above valuation is accurate as far as my knowledge as at thedate of this letter.Please note that this valuation is provided to the best of my knowledge andbelief with the information currently available to me and I am unable towarrant or guarantee its accuracy or completeness, nor can I or New ZealandBloodstock Ltd accept any liability whatsoever for any loss or damage whichmay arise directly or indirectly from use of or reliance on this valuation.[69] Despite Mr Jones' reservations as to the value of the mare and the qualifiedterms of Mr Rolston's valuation, Mr Jones proceeded to commit to the lease topurchase Woodpecker Hill at the price stipulated in Mr Rolston's valuation.[70] The LTP was concluded shortly thereafter on terms which appear to have beenstandard for such funding transactions entered into by NZB Finance. Under the LTP,NZB Finance procured the purchase of the animal and retained title to it until thepayments required by the terms of the LTP, including the residual payment at the endof the lease term, were paid by Mr Jones. He had rights to possession of the mare andwould have sole property in her progeny. Title was to pass to Mr Jones on his makingthe final payment under the LTP.[71] Material to any claim Mr Jones might bring for disentitling conduct byNZB Finance is cl 4 of the LTP, which sets out the warranties, acknowledgements andagreements accepted by Mr Jones as lessee. Clause 4 of the LTP provides in relevantpart:4 Lessee's Warranties Acknowledgements and AgreementsThe Lessee warrants acknowledges and agrees that(o) The Lessor makes no representation or warranty of any kind in respectof this Lease other than as expressly referred to herein and, inparticular, makes no representation or warranty in respect of any lawin relation to the incidence of taxation as effected by this Lease.(p) Any implied warranty or condition whether statutory or otherwise andwhether as to quality state condition or fitness for any particularpurpose of the Animal or as to any other matter or thing whatsoeverby the Lessor is hereby excluded from this Lease to the extentpermissible by law.[72] The mare was duly serviced by Zacinto and produced a foal by him. It appearsthat foal was of no significant value. Although NZB Finance as lessor had the rightunder terms of the LTP to require Mr Jones to redeliver the mare to it if he defaultedon payments, that has not occurred. Counsel appeared to accept that, whatever hervalue at earlier points in time, Woodpecker Hill does not now have any substantialvalue.[73] After the present proceedings were commenced, Mr Jones claimed that thevaluation was relied on by him, was grossly inflated, and disentitled NZB Financefrom enforcing, at least the terms of the LTP.32 In February 2020 Mr Jones procureda valuation of Woodpecker Hill from Mr Clark. Mr Clark cast his valuation as at1 August 2018, treating Woodpecker Hill as having been a five-year-old maiden mareat that time. He assumed that she would have been in excellent health and conditionat the time. He acknowledged as relevant to his valuation that the mare had beenpassed in when offered at the New Zealand Bloodstock 2015 Karaka premier sale, thatshe had run 13 times without a win and that she had been retired with a rating of 45.[74] Mr Clark's valuation on those terms was $1,500, exclusive of GST.The valuation was subject to these comments:At the end of the day, a thoroughbred is worth what someone is prepared topay for it. My own valuation of her, dated 01.08.18, with all factorsconsidered, is NZ$1,500 While bloodstock valuations vary widely amongst those qualified to judge, Ihave 35 years of direct industry experience and am comfortable with the figurenoted above.32 Mr Jones' submissions on appeal were to the effect that a fraudulent valuation of Woodpecker Hillvitiated all of his contractual commitments to NZBS. See [87]–[88] below.[75] After Mr Jones had put the quality of Mr Rolston's valuation in issue,Mr Rolston deposed in an affidavit in reply, as follows:13. When valuing Woodpecker Hill, there were three commerciallyrelevant factors, in addition to the mare being sired by a very potentsire of broodmares, to show why the mare was valued at $45,000.00plus GST:13.1 The mare traces to one of Australasia's most commercialfamilies;13.2 The service fee for Zacinto (Woodpecker Hill's sire) at thetime of mating was $12,000.00; and13.3 New Zealand's leading three-year-old of that seasonUgo Foscolo was by the same sire and carried the exact samegenetic cross, being out of a Stravinsky mare.[76] We take the reference to Zacinto as being Woodpecker Hill's sire as an error inthat Zacinto was the stallion intended to be put to Woodpecker Hill to get her withfoal, rather than the stallion that sired Woodpecker Hill. Both valuations recognisedthat Woodpecker Hill was sired by Stravinsky. On that basis, it was wrong forMr Rolston to attribute value to Woodpecker Hill reflecting the $12,000 cost for themare being serviced when that was only going to occur after Mr Jones' acquisition ofa lessee's interest in her.[77] We do not attribute materiality to the reference in Mr Rolston's valuation toWoodpecker Hill as "he"; rather that must be a careless typographical error given thatMr Rolston's valuation was on the basis that Woodpecker Hill was a chestnut mare.[78] Mr Jones makes much of the mistake in Mr Rolston's subsequent attempt tojustify reaching $45,000 as the value of the mare, by including a notional $12,000 forthe mare having been serviced by Zacinto when that had not happened. He likened itto selling a motor vehicle for $45,000 on the basis that there was $12,000 in cash inthe boot when the $12,000 was either not there or belonged to the prospectivepurchaser.[79] Given the 3000 per cent difference between Mr Clark's subsequent valuationat $1,500 and Mr Rolston's at $45,000, Mr Jones submitted that a compelling andinevitable inference arose that Mr Rolston deliberately overvalued the mare to induceMr Jones to commit to the LTP and thereby to cause harm to his financial interests.[80] Mr Jones' attitude to the Rolston valuation was materially more measuredshortly after receiving Mr Clark's valuation of the mare. In his 14 February 2020affidavit, Mr Jones deposed:Mares by the stallion Stravinsky are highly [sought] after and sometimes thepossibility of high performing family members being likely to surface in thenear future can impact on values and so I considered that in retrospect it wasperhaps possible for the mare to be of a value of something like the figure forwhich I finally purchased her. I recall at the time as well that there was somemention of another purchaser having offered a sum similar to that.[81] Mr Clark's valuation is documentary hearsay and NZB Finance submitted itought to be disregarded on that account. Short of evidence pursuant to a subpoena,the prospects of Mr Jones procuring better evidence from Mr Clark appear to havebeen exhausted, given Mr Jones' claim in an affidavit that Mr Clark will not helpfurther given his concern to maintain a happy relationship with NZB Finance.[82] Mr Clark's valuation is a reconstruction in February 2020 when Mr Jonesrequested it purporting to value the mare as a five-year-old maiden in August 2018,that is a year later than Mr Rolston's valuation. By that time, the mare was in foal toZacinto which would, apart from Mr Jones' interest in Zacinto, have incurred a cost of$12,000. The valuation does not acknowledge any value attributable to the mare byvirtue of its sire being Stravinsky, whom Mr Jones describes as producing highlysought-after mares.[83] If Mr Clark was subject to cross-examination on his valuation, he could expectto be tested on whether it was affected by hindsight. It is also speculative as to whatdifferent value Mr Clark would attribute to the mare if asked to reconstruct a valuationas at the 2017 date of Mr Rolston's valuation, and on the basis of an available serviceby Zacinto. The most that can be taken from Mr Clark's hearsay valuation is that thereis a prospect that Mr Jones could procure evidence of a dramatically lower valuationfor Woodpecker Hill at the time of Mr Rolston's valuation of her.[84] Both valuations are caveated in respects suggesting elements of subjectivity,and the legitimate prospect for substantial differences of view among valuers.Having received Mr Rolston's valuation, Mr Jones entered the LTP without inspectingWoodpecker Hill. He professes to have expertise in breeding matters.NZB Finance contended that Mr Jones retained his own bloodstock adviser, aMr Dean Hawthorne. That claim was not responded to in Mr Jones' affidavits and hewas equivocal on the point during oral submissions.[85] In his own reaction to Mr Clark's valuation, as quoted at [80] above, Mr Joneswas accepting of the prospect that Mr Rolston's valuation could have been justified.Without more, we are not prepared to attribute to Mr Rolston the prospect of anintentionally fraudulent overvaluation of the mare in reliance only on the dramaticdifference between his contemporaneous valuation and hearsay of Mr Clark'ssubsequent reconstruction of value a year later.[86] After hearing all of Mr Jones' arguments about Mr Rolston's valuation weconsider that, if any tenable cause of action could be advanced, it could not be formore than negligence in its preparation. It appears to have been somewhat cursorilyprepared and Mr Rolston's subsequent affidavit is disappointingly casual in providingan explanation for it. However, nothing less than intentional overvaluation could availMr Jones in the present context. If the prospect is only of negligent valuation, thenthe waiver of any claim for negligence that is included in the terms of the warrantiesaccepted by Mr Jones in the conditions of the LTP would prevent him having a tenablecause of action for negligent overvaluation.[87] For completeness, we acknowledge Mr Jones' submission that once he raiseda tenable basis for a claim of fraud affecting the LTP, then he could also rely on thatto deny liability for the earlier CCA. He put it that the evidence showed "anunseverable intertwining of the relationship between myself and [NZB Finance] inrespect of both contracts". Mr Jones relied upon observations of Denning LJ in theEnglish Court of Appeal in Lazarus Estates Ltd v Beasley.33 That appeal arose inlitigation in which the tenant of a residential flat subject to statutory rent restrictions33 Lazarus Estates Ltd v Beasley [1956] 1 QB 702 (CA).challenged the extent of increased rent claimed by the landlord on the basis ofimprovements allegedly undertaken to maintain or improve the state of the tenantedflat. The tenant claimed that moneys purportedly spent by the landlord werefraudulently claimed to relate to the state of her flat. The landlord opposed the tenant'schallenge to the increased rent on grounds including her failure to make timelychallenge to notice of the money spent on the property, in reliance on which thelandlord had purported to increase the rent. In that context, Denning LJ observed:34No court in this land will allow a person to keep an advantage which he hasobtained by fraud. No judgment of a court, no order of a Minister, can beallowed to stand if it has been obtained by fraud. Fraud unravels everything.The court is careful not to find fraud unless it is distinctly pleaded and proved;but once it is proved, it vitiates judgments, contracts and all transactionswhatsoever [88] We would not accept that the context in which Denning LJ observed that"[f]raud unravels everything" could apply in the present litigation to disqualifyNZB Finance from enforcing the earlier contract on its terms where it was quiteunaffected by any fraud influencing the subsequent entry into the LTP. Relief for bothinnocent and fraudulent misrepresentation is governed by ss 35 and 37 of the Contractand Commercial Law Act 2017, which do not provide any basis for disentitlingNZB Finance from enforcing an earlier contract not induced by the fraud.[89] Mr Jones bolsters his allegations that Mr Rolston's valuation ofWoodpecker Hill was fraudulent by linking the valuation with what Mr Jones allegesare concerted actions by NZB Finance, and others in the thoroughbred industry alliedwith it, to harm Mr Jones' interests. We turn next to the prospects for any claim againstNZB Finance that it, or any individuals for whom it might be vicariously liable,participated in unlawful conspiracies against Mr Jones. In the end we are satisfied thatthese wide-ranging allegations cannot add anything to what is otherwise clearly aninadequate basis for alleging that the Woodpecker Hill valuation was fraudulent.Conspiracies against Mr Jones?[90] Mr Jones' lengthy affidavits detail a diverse range of suspicions aboutconspiracies allegedly intended to harm his horse breeding interests, plus conduct and34 At 712–713.signals which Mr Jones perceives as being intended to harm him or threaten him in hislegal career or his personal life. Mr Jones has not related his wide-ranging suspicionsto a draft pleading setting out the alleged scope of the conspiracies, along with theidentity of the alleged conspirators and some indication of the timing and nature ofsteps allegedly taken against his interests.[91] Mr Jones contended that he had been subjected to both lawful means andunlawful means conspiracies. He set out the elements required to establish each formof conspiracy, with common elements including the need for those participating toknow, and to agree to at least the context or outline of the conspiracy, and to bemotivated by intentions to injure him.35 A plaintiff must prove damage suffered as aresult of the conspiracy for it to be actionable in tort.36[92] Mr Jones' submissions did not include an outline of those proposed defendantswho had been responsible for the requisite elements of either form of conspiracy withanywhere near the specificity that would be required in a draft pleading.[93] Mr Jones implicates his former wife and her sister in steps he perceivedgenerally as adverse to his interests, extending to warnings that he should not rock theboat with NZB Finance or other establishment interests in the thoroughbred industry.Those suspicions are fanciful. We have ruled the evidence of conduct by familymembers as inadmissible and there is no suggestion in Mr Jones' affidavits that couldcredibly connect any steps taken by his former wife or her sister with NZB Finance orother interests in the thoroughbred industry.[94] Mr Jones also cites an instance of allegedly deliberate physical impact with amember of his family in the course of a non-contact sporting event. Mr Jonesperceives that as part of a campaign to warn him off taking steps contrary to theinterests of either NZB Finance or others in the thoroughbred establishment. Mr Jones35 Mr Jones distilled the elements of an unlawful means conspiracy from Swann v SecurelandMortgage Investment Nominees Ltd [1992] 2 NZLR 144 (CA) at 147 per Cooke P, citingWai Yu-tsang v R [1991] 4 All ER 664 (PC) at 671–672, and the elements of a lawful meansconspiracy from JSC BTA Bank v Khrapunov [2017] EWCA Civ 40, [2017] QB 853.36 Stephen Todd (ed) The Law of Torts in New Zealand (8th ed, Thomson Reuters, Wellington, 2019)at [13.4.01]. The elements of a lawful means conspiracy were set out by Ellis J in Wagner v Gill[2013] NZHC 1304 at [88]. The elements of an unlawful means conspiracy were set out byFrench J on appeal in Wagner v Gill [2014] NZCA 336, [2015] 3 NZLR 157 at [50].does not cite any grounds for any possible connection between the unnamed personsinvolved in that incident and any conspiracy undertaken by NZB Finance toimproperly influence Mr Jones' conduct.[95] Mr Jones also cites a range of random instances involving friends andcolleagues in the law in Auckland that he has interpreted as intended to convey signalsto him that he ought not to take any steps contrary to the interests of those dominantin the thoroughbred industry. We have ruled the diverse recollections of these allegedincidents to be inadmissible. In any event, none of the instances described couldprovide any credible foundation for an allegation that former friends and colleagueshave contributed to conspiracies intended to influence Mr Jones in his dealings withNZB Finance, by taking intentional steps adverse to his interests.[96] Mr Jones went so far as to attribute two instances of food poisoning he hadsuffered to unnamed participants in conspiracies against him. The first occasion wasin or around 2011 when Mr Jones considers he was poisoned in a food hall inNewmarket, Auckland. At an unspecified later point in time whilst on a golf trip onthe Mornington Peninsula out of Melbourne, Mr Jones suffered similar symptomswhich led him to conclude that on both occasions he had been poisoned intentionally.Mr Jones offers no evidence that anyone remotely connected to NZB Finance, orsomeone prepared to do their bidding in deliberately poisoning a customer at an eatingestablishment, could have had any part in the causes of those two instances of foodpoisoning. This claim was one of those singled out by Mr King in his submission thatthe fanciful nature and wide-ranging extent of Mr Jones' unsubstantiated suspicionsrequired the whole of his contentions about conspiracies to be rejected.[97] The alleged conspiracies most closely related to Mr Jones' contractualobligations to NZB Finance allege physical or financial harm to his interests inthoroughbred horses, committed by NZB Finance personnel or others motivated tohelp it.[98] The allegation of an intentionally inflated valuation for Woodpecker Hill istreated by Mr Jones as part of a continuing course of conduct by NZB Finance, andothers aligned with them to intentionally harm Mr Jones' thoroughbred breedingbusiness. Mr Jones details various instances which he alleges form part of thatcontinuing course of conduct. He alleges that in June 2015 a telephone discussionwith Mr Rolston ended with their taking different views about a matter and Mr Rolstonsaying words to the effect "we'll see about that in the morning". Mr Rolston deniesmaking a statement to that effect.[99] The next morning Mr Jones learnt that one of his colts which was being caredfor at Wentwood Grange had a large gash in its leg. Mr Jones now cites the timing ofthe injury to that colt as part of a "continued series of events aimed at repeatedlyunsettling me". Mr Jones does not attribute personal responsibility to Mr Rolston forthe damage, and nor does he describe the circumstances in which Mr Rolston allegedlydirected those caring for the colt to deliberately cause it damage, or how Mr Rolstonbecame aware that such an injury was to be deliberately inflicted. Mr Jones'description of his discussion with Mr Rolston gives no reason why Mr Rolston'sstatement might have reflected any more than an observation that Mr Jones (or bothof them) might see the matter they had different views about from another perspectiveafter further consideration.[100] This incident occurred before the CCA had been entered into. In addition,some other matters now cited by Mr Jones occurred before the LTP was entered into.It would be irrational to undertake such borrowings if Mr Jones sensed at the time thatanimus towards him persisted. That tends to suggest there has been a re-definition ofsuch incidents by Mr Jones once he disputed his liability to repay the advances.[101] In his 25 May 2020 affidavit, filed on the eve of the summary judgmenthearing, Mr Jones raised his recent recollection of a telephone discussion with Mr Ellisthat he believes occurred in the middle of 2017. In the context of an outstanding billowed by Mr Jones to a stud operated by Mr Ellis, Mr Jones contends that Mr Ellismade a statement to the effect that Mr Jones' legal business "had better becomeprofitable by September". Mr Jones now treats that comment as a threat that Mr Jones'legal practice would need to be profitable to subsidise losses Mr Ellis predicted forMr Jones' thoroughbred interests.[102] Mr Jones submitted that NZB Finance had elected not to respond to this freshallegation, despite opportunities to do so. That point is not sustainable, given the factthat Mr Jones raised the allegation at the very last minute before the summaryjudgment hearing. When viewed as a component of the whole narrative of events citedby Mr Jones in support of his suspicions of a conspiracy against him, we do not acceptthat his allegations about Mr Ellis in this respect deserved a response. Nor do we seethem adding anything to his allegations of conspiracies involving NZB Finance.[103] In about October 2017 Mr Jones was anticipating offering aReliable Man–Adalia colt for sale in the January 2018 Karaka sales. His own view,which he claims was supported by others expert in assessing thoroughbred horses wasthat he could anticipate a sale price of somewhere between $200,000 and $250,000.Mr Jones intended to apply the proceeds of sale to pay off the debt he owed toWentwood Grange and, with other proposed sales, make significant inroads in theamounts owed to NZB Finance.[104] However, in early November 2017 the Reliable Man–Adalia colt becameinjured with a swollen hock. The injury did not heal and it was necessary for the horseto be operated on early in January 2018, preventing a sale at Karaka that year.Mr Jones contends that Wentwood Grange and the veterinary service involved incaring for the colt conspired to harm him financially by deliberately failing to attendproperly to the colt.[105] Mr Jones alleges that the treatment of the Reliable Man–Adalia colt was partof a campaign to place him under pressure and prevent his business from succeeding.Mr Jones perceived NZB Finance as pressuring him to sell his interest in the stallionReliable Man which Mr Jones assessed to be valued at approximately $150,000.Implicitly it appears that Mr Jones perceived NZB Finance as wanting to exclude himfrom ownership interests in the stallion either because they saw its value increasingbecause of the performance of its progeny, and did not want Mr Jones to enjoy thatgreater value; or possibly because he was difficult to deal with and NZB Financewanted to avoid that. Mr Jones perceives NZB Finance as placing pressure on him toreduce his debt to them as a means of forcing him to sell his interest in Reliable Man.He points to valuations of his bloodstock which NZB Finance provided Mr Jones inthe course of discussions about the state of his business and his interest inReliable Man. Mr Jones takes issue with the accuracy of those valuations, and submitsthat the valuations are an example of attempts to apply pressure to him.[106] In January 2019 Mr Jones entered a Contributor–Adalia filly in the Karakasales that were conducted by an affiliate of NZB Finance. Mr Jones learnt that thefilly had been entered in the second sale when he considered she should have beenplaced in the first sale based on her "pedigree and conformation". On Mr Jones'analysis four other fillies of equivalent pedigree were chosen ahead of his to be placedin the main sale, giving them a significant marketing advantage over his. He contendsthat this action caused him a loss of up to $130,000.[107] Mr Jones also alleges that sale of a foal in Australia was sabotaged by personsaligned with NZB Finance conveying to those present at the auction negative termsabout the attributes of the foal. Those comments allegedly caused it to be passed in atthe auction without any bids.[108] In addition, Mr Jones complains of mistreatment of another foal born atWentwood Grange that was not given prompt attention when required at the time ofits birth. Veterinary services allegedly in league with NZB Finance attributed a defectto the foal that would reflect adversely on its mother rendering her worthless forfurther breeding purposes. Mr Jones alleges that veterinary analysis was deliberatelywrong.[109] In respect of the same foal, Mr Jones cites a telephone discussion withMr Andrew Seabrook, the managing director of NZB Finance, sometime before itsbirth. In discussing the value of his interests, Mr Seabrook allegedly dismissed thevalue that Mr Jones attributed to the foal that was then still to be born, by discountingany valuation on the basis that the foal might be born with health problems. From thatcomment, Mr Jones contends that NZB Finance intervened in the care of the mare atthe time of birth of the foal, to deliberately harm it.[110] Both NZB Finance and Wentwood Grange were, at the time of these variousactions allegedly taken by them to harm Mr Jones' interests, owed substantial amountsof money by him. NZB Finance was pressing for reduction or repayment of theadvances that are the subject of the judgment under appeal. Wentwood Grange hadagreed to provide credit for Mr Jones in respect of agistment and other costs of caringfor his horses, through until the following yearling sales. Optimising the proceeds ofsuch sales and the value of his horses in their care would be material to WentwoodGrange, as these were the assets from which Mr Jones would repay his obligations tothem.[111] When it was pointed out to Mr Jones that his allegations suggested irrationalconduct by NZB Finance and Wentwood Grange as creditors of his harming their ownfinancial interests by impairing his ability to repay amounts owed to them, Mr Jonesreadily accepted that the conduct he alleged was economically irrational.He submitted that NZB Finance and industry interests aligned with them would behappy for their conduct harming his interests to cost them millions of dollars in order,in Mr Jones' words, to "keep them out of jail".[112] The only evidence that Mr Jones has adduced to support his claim thatNZB Finance enjoys a position of dominance in the New Zealand thoroughbredindustry sufficient for other participants in the industry to do its bidding in order tostay onside or curry favour with it is the hearsay statement he attributes to the valuer,Mr Clark. Mr Clark supposedly declined to assist Mr Jones further because of theimportance of his maintaining a happy relationship with NZB Finance. Although itmay be credible that other participants in the industry would wish to stay on side withNZB Finance, there is nothing in the extensive narratives deposed to by Mr Jones thatcould lay any foundation for a claim that the individuals and organisations referred toby Mr Jones would be prepared to expose themselves to civil or even criminal liabilityfor conduct intended to harm his interests.[113] As already mentioned, Mr Jones perceives the animosity towards him on thepart of NZB Finance and interests aligned with it to derive from his acting forMrs Twyname in 2004. Mr Jones ceased acting for Mrs Twyname before thesubstantive claims went to court and after he ceased acting, the claim was apparentlysettled. The CCA and the LTP were concluded some 12 and 13 years after Mr Jonessupposedly caused offence over the nature of allegations he made against Mr Ellis.On any view, his participation in Mrs Twyname's claim must by then have been oldhistory.[114] Mr Jones does not claim that he was pressured to seek finance fromNZB Finance when he entered the CCA in 2016, or in 2017, when he entered the LTP.Nor is there any suggestion that NZB Finance would only deal with Mr Jones on termsless advantageous to him than those it offered in the ordinary course of financingthoroughbred horses. If any animosity towards Mr Jones still persisted in 2016, arational reaction from NZB Finance would be to decline to deal with him. It isfar-fetched and without any credible factual foundation to suggest that NZB Financeundertook money lending transactions with Mr Jones intending to cause harm to hisinterests, given a natural consequence of pursuing such a strategy would create the riskof their losing money.[115] In any event, we are satisfied that the allegations made in Mr Jones' originalaffidavit and the additional points made in his subsequent affidavits regarding theconduct of NZB Finance, or those allied to it, inarguably fall short of the foundationthat would be required to recognise the prospect of such a claim.Other procedural issues[116] On 19 May 2020 Mr Jones had made a separate application to either dismissor stay the summary judgment application on the grounds that the summary judgmentprocedure was inappropriate because Mr Jones had alleged fraud against the plaintiff;there were genuine conflicts of evidence, some of which arose from the opinions ofexperts; and the application was oppressive and had been brought in bad faith.[117] On 20 May Jagose J issued a minute declining to dismiss or stay the summaryjudgment application at that stage, and deferring determination of the application until"at or after the substantive hearing".37 In that minute, the Judge also noted Mr Jones'contention that there was "a 'gap' caused by his inability to call his intendedwitnesses", being the witnesses Mr Jones had earlier applied to subpoena.38 As noted37 20 May Minute, above n 2.38 At [4], citing Evidence judgment, above n 11, at [11] and [19].above, Peters J had adjourned Mr Jones' application for orders under r 9.75 of theHigh Court Rules to enable him to adduce evidence that he had requested the proposedwitnesses to provide an affidavit, and that they had refused to do so.39 By the timeJagose J issued his minute on 20 May 2020, Mr Jones contemplated subpoenas forMr Clark in relation to the valuation of Woodpecker Hill, and Professor Ahern inrelation to the treatment of the Reliable Man–Adalia colt. After Jagose J issued hisminute, Mr Jones filed a further memorandum requesting clarification on the status ofhis applications to adduce viva voce evidence.[118] Mr Jones then filed a further application for stay of the summary judgmentapplication and adjournment of the hearing on 25 May 2020. There is no minutebefore us but it is clear that Jagose J determined that he would deal with theapplications at the hearing. Both the 20 and 25 May 2020 applications were declinedin Jagose J's judgment.40 Mr Jones then separately sought leave to appeal against the20 and 25 May 2020 decisions. That initiative was subsequently pursued by him in aseparate appeal in this Court: CA538/2020.[119] On 30 October 2020 Brown J issued a minute directing that all the challengessought to be raised in CA538/2020 ought to be pursued in the current appeal whichhad been commenced by then.41 Mr Jones did not comply with that minute, purportingto pursue the issues in CA538/2020 separately. After the Court gave him notice of itsintention to consider striking out CA538/2020, and submissions had been receivedfrom Mr Jones opposing any striking out, the Court determined that it should indeedbe struck out as an abuse of process.42[120] Mr Jones included in his submissions in the present appeal criticisms of thedecisions of Jagose J not to grant either a stay or adjournment of the summaryjudgment application, and for not granting orders for the hearing of viva voce evidencefrom witnesses Mr Jones sought to subpoena.39 Evidence judgment, above n 11, at [18].40 Judgment granting summary judgment, above n 1, at [42].41 Jones v New Zealand Bloodstock Finance & Leasing Ltd CA538/2020, 30 October 2020(Minute of Brown J).42 Jones v New Zealand Bloodstock Finance & Leasing Ltd [2021] NZCA 213.[121] Mr Jones had sought leave to appeal the interlocutory rulings first, leaving forlater, separate argument his challenge to the substantive reasoning in Jagose J'sjudgment granting summary judgment. He had failed to comply with the relevantprovisions of the Court of Appeal (Civil) Rules 2005 as to the time for filing his caseon appeal in the present appeal and for applying for a hearing date. He was grantedan extension until June 2021 to take those steps. However, his attempt to separatelyappeal the interlocutory rulings was found not to be arguable.43 In confirming theoutcome the Court ruled:44CA538/2020 is struck out, bringing to an end Mr Jones's applications for leaveto appeal the decisions of 20 and 25 May.[122] Mr King submitted for NZB Finance that the Court should not considerMr Jones' submissions challenging the separate interlocutory rulings, on the groundthat the terms of the striking out of CA538/2020 had determined that they were nottenable. Mr Jones insisted in his oral submissions that he would not be afforded anadequate hearing unless the Court considered his challenges to those rulings becausethey adversely impacted on the adequacy of his opportunity to oppose summaryjudgment.[123] The reasoning in this Court's decision striking out CA538/2020 must beunderstood in the context that the decision granting summary judgment againstMr Jones was to be the subject of an appeal which remained on foot because of theextension of time granted. It might be argued that the decision to strike outCA538/2020 was influenced to an extent by the adequacy of the opportunity Mr Joneswould have to advance all arguments open to him on the present appeal. From anabundance of caution, we accordingly record our views on the arguments Mr Jonesadvanced against those interlocutory rulings.[124] Granting leave to issue subpoenas and have viva voce evidence in the courseof hearing an application for summary judgment is rare.45 If the court is persuaded offactual disputes requiring such initiatives, then generally a defendant will have made43 At [37].44 At [45(a)].45 See generally Legg v Shelf Number Nine Ltd (1987) 1 PRNZ 191 (HC) and Host Catering Ltd vAir New Zealand Ltd (1989) 2 PRNZ 126 (HC).out the proposition that the nature of the dispute is inappropriate for resolution atsummary judgment.46[125] It was open to Jagose J to defer determination of the application until he hadheard argument on summary judgment and would be able to come to a better-informedview as to the justification for adjourning resolution of the application to allowviva voce evidence. It was also open to the Judge to reach the view that adjournmentof the hearing to allow the prospect of viva voce evidence from Mr Clark andProfessor Ahern was not warranted in the interests of justice. Assuming in Mr Jones'favour that Mr Clark adhered to his original valuation of Woodpecker Hill of $1,500,the vast discrepancy between the two valuations could not materially advanceMr Jones' claims of fraud by NZB Finance, beyond the terms that he had argued.[126] The subject of Professor Ahern's opinion related to treatment of a horse whereMr Jones attributed conspiracy between those with care of the horse, andNZB Finance. There was no evidence that the care of the horse had been in any waydirected by NZB Finance and that critical break in any allegation of responsibility byNZB Finance for its alleged mistreatment casts doubt on the possible relevance of anopinion proffered to the Court by the Professor.[127] We are not persuaded that there was material error by the Judge in dealing withthis aspect of Mr Jones' procedural initiatives as he did.[128] As to the application for dismissal, stay or adjournment, the summaryjudgment application had been filed in September 2019 with Mr Jones filingdocuments in opposition to it sequentially from mid-November 2019 through until theweek of the hearing in late May 2020. Irrespective of the complexity claimed byMr Jones for the issues, and the difficulties he claims to have encountered in producingevidence because of NZB Finance's dominant position in the industry, he had beenafforded a reasonable opportunity to prepare evidence in opposition to the applicationfor summary judgment. The argument occurred some 14 months after demand hadbeen made for repayment of commercial money lending advances. We can find no46 See Host Catering Ltd v Air New Zealand Ltd, above n 45, at 127; and see Westpac BankingCorporation v MM Kembla New Zealand Ltd [2001] 2 NZLR 298 (CA) at [62].error in the Judge's decision to proceed with the hearing, rejecting grounds foradjournment of it or stay or dismissal of the summary judgment application.[129] We accordingly dismiss Mr Jones' appeal and uphold the judgment allowingsummary judgment. We were advised by counsel that there have been issues inquantification of the judgment that NZB Finance has sought to seal. It is beyond thescope of the present appeal to express any view on that matter. Any disputes on mattersof quantification are to be resolved in the High Court.Costs[130] At the conclusion of the hearing, Mr King did not press for indemnity costs ifthe appeal was unsuccessful. He acknowledged that the contractual provisionsentitling NZB Finance to recover costs of enforcement of the contracts arguably didnot extend to costs on any appeal.[131] The terms of this judgment had been settled when on 25 July 2022 amemorandum addressing costs issues was filed on behalf of the respondent.47The memorandum sought indemnity costs on two bases: first pursuant to thecontractual provisions of the loan documents, and secondly on account of Mr Jones'frivolous and vexatious conduct of the proceeding.[132] It appears that this application may have been encouraged by a 23 June 2022decision of Jagose J granting the respondent indemnity costs in respect of theHigh Court proceeding.48[133] Consistently with Mr King's original indication, we do not consider thecontractual provisions ought to apply to costs incurred in defending the summaryjudgment that NZB Finance was granted by the High Court. It is unnecessary toanalyse in detail the different provisions included in the two contracts for recovery ofcosts incurred by the creditor/lessor in the event of default by the debtor/lessee. In thisCourt, NZB Finance was defending its entitlement to have summary judgment for theamounts outstanding under both contracts. It is entitled to the truncated procedure47 It had been foreshadowed in an informal email sent to the Registry on 23 June 2022.48 New Zealand Bloodstock Finance & Leasing Ltd v Jones [2022] NZHC 1477.involved in an application for summary judgment, and whilst Mr Jones has raisedwide-ranging arguments all of which have been dismissed as untenable, we treatNZB Finance as a respondent in the usual position, entitled to a contribution only andnot complete indemnification for the costs it has incurred in defending the judgmentobtained from the High Court.[134] As to the second ground seeking indemnity or increased costs, thememorandum cites a number of factors, including that the fraud and conspiracy claimswere made without any evidential basis other than Mr Jones' own suspicions, that theappeal was filed multiple times, that the casebook took over a year to file and thatthere were multiple applications to adduce further evidence. In the end, Mr Kingacknowledges that the issues on the appeal were very simple, but he criticises Mr Jonesfor requiring a two-day hearing to canvass an array of irrelevant arguments.[135] Confining our analysis to just these features of the present appeal, we are notpersuaded that it was pursued in a frivolous or vexatious manner to an extent thatjustifies indemnity or increased costs. Another consequence of the point Mr Kingmakes about the issues being simple is that the respondent's task was not undulycomplicated. The focus on the obvious weaknesses in the appeal was sufficient tomake out that it was untenable. We are not persuaded that an increased award of costsis justified.[136] The respondent is entitled to costs for a standard appeal on a band A basis.Given the extent of Mr Osama's involvement in the argument, we grant an allowancefor second counsel, together with usual disbursements which, if necessary, are to besettled by the Registrar.Solicitors:McKenna King, Hamilton for Respondent