BIL v PRICEWATERHOUSE [2020] NZHC 2773

BIL v PRICEWATERHOUSE [2020] NZHC 2773 [23 October 2020]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV 2020-485-668[2020] NZHC 2773UNDER The Fair Trading Act 1986 and the Contracts(Privity) Act 1982BETWEEN BIL NZ TREASURY LIMITEDFirst PlaintiffGL MANAGEMENT PTY LIMITEDSecond PlaintiffGL LIMITEDThird PlaintiffAND PRICEWATERHOUSECOOPERS NEWZEALANDDefendantOn the papersAppearances: R J Hollyman QC and G D Sims for PlaintiffsD J Friar and T G H Smith for DefendantJudgment: 23 October 2020JUDGMENT OF GWYN J(Application for joinder of plaintiff and order backdating joinder)[1] This file came before me as Duty Judge on 9 October 2020.[2] Counsel for the plaintiffs have filed a memorandum seeking an order underr 4.56 of the High Court Rules 2016 (Rules) for joinder of Brierley Holdings Limited(BHL) as a further plaintiff in the proceeding.[3] The memorandum notes that BHL is a wholly-owned subsidiary of the firstplaintiff, a member of the same group of companies as the second plaintiff and asubsidiary of the third plaintiff. BHL is one of two parties (the other being the firstplaintiff, BIL NZ Treasury Limited) involved in the arrangement that is the focus ofthe proceedings. The causes of action and relief pleaded in respect of BHL are thesame as for the other plaintiffs. In counsel's submission BHL ought to have beenjoined as a plaintiff and its presence before the Court is necessary to adjudicate on andsettle all questions involved in the proceeding.[4] The Court has a broad discretion to join new plaintiffs. Rule 4.2 of the Rulesprovides:4.2 Plaintiffs(1) Persons may be joined jointly, severally, or in the alternative asplaintiffs,—(a) if it is alleged that they have a right to relief in respect of, orarising out of, the same transaction, matter, event, instrument,document, series of documents, enactment, or bylaw; and(b) if each of those persons brought a separate proceeding, acommon question of law or fact would arise.(2) On the application of a defendant, the court may, if it considers ajoinder may prejudice or delay the hearing of a proceeding, orderseparate trials or make any order it thinks just.[5] The criteria in r 4.2 are satisfied here.[6] I am also satisfied that, under r 4.56, joinder of the proposed fourth plaintiff isnecessary to ensure that all matters in dispute between the parties can be effectivelyand completely determined.[7] Counsel confirms that there will be no prejudice or delay arising from thejoinder and the defendant has confirmed that it will abide the decision of the Court onthe application for joinder.Retrospective joinder[8] The plaintiffs also seek an order that the joinder of BHL be backdated from21 August 2020, being the date that the plaintiffs filed an amended statement of claimnaming BHL as the fourth plaintiff, together with a memorandum noting that theplaintiffs would seek an order adding BHL as a plaintiff.[9] The memorandum filed by counsel for the plaintiffs notes that as the matterscovered in the proceeding go back to 1998, and the defendant has raised limitationdefences, it is important that BHL is added as a plaintiff with delay.[10] I have no information before me as to potential limitation issues, other than theplaintiffs' memorandum. As Grice J observed in Winton v Winton,1 the limitationregime is carefully designed to enable the balancing of various rights and interests toensure the proceedings are dealt with fairly. It is not appropriate to attempt to dealwith those interests in response to a memorandum and without the full picture beingavailable to the Court.[11] I sought the view of counsel for the defendant on the question of retrospectivejoinder. By memorandum of 15 October 2020, counsel advised the Court that,although the defendant will abide the decision of the Court in relation to joinder perse, it opposes the application for retrospective joinder.[12] There has been a subsequent exchange of memoranda by the parties. Counselfor the defendant has referred me to the decision of McLachlan v MEL Network Ltd2where Potter J cited Ketteman v Hansel Properties3 in support of the proposition thatthe "action is brought" on "the date upon which the defendant is joined as a party inaccordance with the rules of Court." (Potter J's emphasis). The Court rejected asubmission that the date of application for joinder is the operative date for limitationpurposes.4 Counsel for the defendant's second memorandum reinforces the1 Winton v Winton [2018] NZHC 1323 at [31]-[35].2 McLachlan v MEL Network Ltd HC Auckland CIV-1998-404-253, 9 December 2004, Potter J.3 Ketteman v Hansel Properties [1987] 1 AC 189 (HL).4 McLachlan v MEL Network Ltd above n 2, at [60]-[61].defendant's view that joinder should be in accordance with "the usual rule", that is itshould take effect as of the date it is made.[13] The plaintiffs point to Commerce Commission v Air New Zealand Limited5 asauthority for the proposition that backdating of a joinder application would not becontrary to principle and caselaw. In that case, an order for joinder was deemed tohave been made as at the date of hearing, rather than the date the order was made.6[14] I am satisfied that the "usual rule" is that the order for joinder applies from thedate it is made. That is not to say there are not cases where it is appropriate to departfrom the usual rule. The question is whether this is one of those cases.[15] Counsel for the plaintiffs refer7 to the lapse of time since the date the plaintiffsfiled an amended statement of claim adding BHL as a plaintiff, 21 August 2020.Counsel note that the defendant responded to the plaintiffs' request as to its positionon joinder on 25 September 2020, and the memorandum seeking the joinder order wasfiled on 2 October 2020.[16] Accordingly, the plaintiffs seek an order for joinder as at 21 August 2020, oralternatively, 2 October 2020. As to the latter option, the plaintiffs say that thedefendant should not be able to benefit from any delay in the order being made "whensuch delay has been created by the defendant raising issues after having consented".[17] I reject that submission. The plaintiffs' 2 October 2020 memorandum seekingjoinder noted (at paragraphs 2 and 8) that "the defendant has confirmed it will abideany decision of the Court on the issue of joinder". The memorandum did not advisethe Court of the defendant's position as to backdating of any order for joinder and itbecame apparent from correspondence from the defendant's counsel, on service of thememorandum, that the plaintiffs had not conferred with the defendant on this question.It was left for the Court to follow up with the defendant as to its position on backdating.5 Commerce Commission v Air New Zealand Limited HC Auckland CIV-2009-404-8352,10 December 2009, Potter J.6 Commerce Commission v Air New Zealand Limited, above 5 at [35].7 Memorandum of 16 October 2020.[18] Counsel for the defendant has now made the defendant's position very clear.8First, that it agreed to abide the decision of the Court on joinder per se, rather thanconsenting to joinder; and, second, it opposed any backdating of the order for joinder.[19] While there has been a short delay between the Court's receipt of the plaintiffs'request for joinder and this order that delay has largely been occasioned by theplaintiffs' failure to adequately inform the Court of the defendant's response to allaspects of the application in its original memorandum seeking joinder.[20] In the circumstances outlined above, and, having regard to the lack ofinformation before the Court as to the impact of the timing of joinder on any limitationdefences, I have reached the view that the order for joinder ought not to be backdated.Result[21] The application for joinder of BHL as a plaintiff is granted.[22] The application for backdating the order for joinder is dismissed.______________________Gwyn JSolicitors:WynnWilliams, AucklandBell Gully, Wellington8 Memoranda of counsel for the defendant 15 October 2020 and 20 October 2020.