Gavigan v Eichelbaum [2017] NZCA 412 (6 October 2017)

Last Updated: 13 October 2017

IN THE COURT OF APPEAL OF NEW ZEALAND
CA237/2016 CA357/2016 [2017] NZCA 412
BETWEEN	ANTHONY JOHN GAVIGAN First Appellant JOINT ACTION FUNDING LIMITED Second Appellant
AND	JOHN REVANS EICHELBAUM Respondent

Hearing:	15 March 2017 (further submissions 27 and 28 March, 2 and 12 June 2017)
Court:	Kós P, French and Asher JJ
Counsel:	A R Gilchrist and G R Abdale-Weir for Appellants Respondent in person
Judgment:	19 September 2017 at 3.00 pm
Public Version:	6 October 2017 at 3.00pm

JUDGMENT OF THE COURT
(PUBLIC VERSION)

1. The appeal is allowed.
2. The cross-appeal is dismissed.

100. [Deleted in public version].

4. The respondent must pay the appellant costs for a standard appeal on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Kós P)

[1] Joint Action Funding Ltd (JAFL), the second appellant, is a litigation-fund manager. It supported a representative action by investors in Feltex Carpets Ltd (Feltex) against various parties involved in Feltex’s initial public offering (IPO). We will call this the Feltex litigation. The first appellant, Mr Gavigan, is a director of and shareholder in JAFL. Mr Eichelbaum, the respondent, is a barrister. He was formerly part of the investors’ legal team in the Feltex litigation. In consideration for his services he agreed to take a 10 per cent shareholding in JAFL. Mr Eichelbaum claims entitlement to share in JAFL’s “Project Management Fees” under an agreement regulating the relationship between JAFL and the claimants in the Feltex litigation, but claims that Mr Gavigan has in effect allocated those fees to himself.
[2] These claims were substantially upheld by Whata J in the judgment on appeal.^[1] In a separate judgment on relief he awarded Mr Eichelbaum damages of $71,174.^[2]
[3] Mr Gavigan and JAFL appeal the substantive judgment. Mr Eichelbaum cross-appeals.

Background

[4] Shorn of inessentials the background facts are these.
[5] In June 2004 Feltex issued shares in an IPO. Feltex was liquidated just two years later. Mr Gavigan incorporated JAFL in December 2007 as a litigation-funding vehicle to advance a representative action on behalf of subscribers in the IPO. The Feltex litigation commenced in February 2008. It soon was beset by a raft of interlocutory issues. These engulfed a large portion of the available funds. Mr Gavigan then approached a Mr Hayes. He agreed to underwrite $250,000 of adverse costs risk in return for a 10 per cent shareholding in JAFL.
[6] In mid-2009 Mr Gavigan assembled a new legal team. But he could not afford the fees for a pending interlocutory appeal. In October 2009 Mr Eichelbaum agreed to take a 10-per-cent shareholding in JAFL for the appeal attendances and for his efforts to raise funds for advancing the litigation. The exact terms of their agreement are somewhat opaque, not being reduced to precise written form.
[7] In December 2009 this Court confirmed that Mr Houghton, one of the investors, could advance the investors’ claims in a representative capacity.^[3] In consequence an agreement was entered into between JAFL and the claimant group in May 2010. We refer to it as the JAFL Agreement. Under it, JAFL would provide “Project Management” services. That included retention of service providers. JAFL would pay “Project Costs”. Those are costs associated with Project Management. In particular JAFL would not seek reimbursement from claimants of any internal overheads other than the “Project Management Fee”. That is a fee payable for Project Management and Project Investigation, being 25 per cent of the total estimates of costs and disbursements contained in the “Project Budget and Time Line”. It is this Project Management Fee that is at the heart of the dispute.
[8] Whata J found as follows:^[4]

[7] ... E was invited to provide assistance with legal representation in mid 2009. At that time G could not afford to pay the legal fees for the appeal, estimated at about $50,000. E initially mooted a proposal that he take 20 per cent share in profit if he obtains funding, or 6 per cent of ongoing legal work. E also proposed to take over management of litigation. This was rejected. On 29 October 2009 E then agreed to take 10 per cent of JAFL in consideration for the Court of Appeal attendances and for fund raising efforts generally. The following day E clarified his position, seeking agreement that he be given 10 per cent of JAFL, half of which represents pay for the appeal and half for general support for the project. He also wanted to negotiate specific incentives over and above that for marketing success. G responded by noting that the appeal will cost him $50,000 and that E can have $2m out of $12.58, being the “upside on the 34% piece of feltex left behind for us”.

[8] E sought confirmation that G agrees to transfer “10% of JAFL to [E]”. G replied that “you can have 10% of jafl in your own name,” but he did not want to deal with issues arising at the Court of Appeal for E being on the share register or any undisclosed interest. E agreed to transfer post the Court of Appeal hearing and suggested divvying up the share so that say “one third relates to the appeal alone, the balance in consideration to my past and future involvement”.

[9] G responded in the following terms:

I agree to allocate one third to past efforts including the appeal and a new statement of claim so we can restart the book build, and one third to future involvement including issuing the float, and one third to staying on board after the float for at least the first year...

[10] G also agreed to transfer the 250,000 shares after the Court of Appeal hearing.

[11] On 31 October 2009 E replied that this was not acceptable. He wanted the new statement of claim allocated to the second third. He also noted that he “will need to see the JAFL funding agreement”. E also sought clarification as to whether he was receiving 10 or 16 per cent. G responded that he agreed to the Statement of Claim work being allocated to the second third.

[12] On Monday 2 November 2009, at 12.15pm, E confirmed that they have an agreement. Later that same day, E asked G:

Is the 25% management fee still in the JAFL and is that in addition to the one third success fee?

[13] G replied:

The 25% is essentially a cash flow hoover of part of the solicitors fees or budget. It allows us to grab most of any (early) partial element against one of the parties.

[14] E was then instructed to appear on behalf of Mr Houghton by Wilson McKay. On 16 November 2009 G recorded to H, cc E, that he has transferred 10 per cent of shares to E “for his services to date and including the COA and the new SOC and any float” and that he had promised E another 10 per cent if he “nails a deal this year that means we don’t have to raise capital...”.

[15] E appeared at the Appeal. The Court of Appeal affirmed the High Court decision to permit a representative action, but overturned the decision not to strike out a breach of fiduciary duty cause of action. The Court also identified a number of issues that required the attention of the High Court, including the appropriateness of funding arrangements, security for costs, amendment of the statement of claim and about the reliability of G.

[16] On 21 December 2009, G expressed satisfaction with outcome of the appeal and confirmed a share split of 10/10/80 less 10 per cent to be sold to fund the next steps.

(Footnotes omitted.)

[9] In a separate judgment to which we refer later, Thomas J held that the agreement made in October 2009 was made by Mr Gavigan on behalf both of himself and JAFL.^[5] Further, the agreement was that Mr Eichelbaum was to have 10 per cent of JAFL’s shares, but that he was not to be registered as a shareholder while he was appearing as counsel for the investors.^[6] Subsequently, as Thomas J put it, it was agreed that putative shareholding be held “effectively in trust” (presumably by Mr Gavigan, who remained the registered holder of those shares) for Mr Eichelbaum pursuant to an option in his favour.^[7]
[10] Following the November 2009 appeal, Mr Eichelbaum continued to undertake services for JAFL. He prepared a position paper concerning possible funders. He paid some of the Court of Appeal disbursements. He provided a legal opinion for JAFL in April 2010 and corresponded with Mr Forbes QC, senior counsel for the investor claimants. In May 2010 he described the 10-per-cent shareholding as a contingency arrangement, which appears consistent with the finding by Thomas J that it was an option only. In the notice to investor claimants, Mr Eichelbaum is recorded as having an option to acquire 10 per cent of the shares in JAFL. The same notice records that Mr Eichelbaum is junior counsel in the proceeding, led by Mr Forbes QC.
[11] Further funding was needed. Mr Gavigan initiated discussions with Harbour Litigation Investment Fund (HLIF) in about January 2011, a litigation funder and investor. Mr Gavigan did not involve Mr Eichelbaum in those discussions. Following further negotiations with HLIF in April 2011, correspondence with HLIF was shown to Mr Hayes and Mr Eichelbaum recording:

[Mr Eichelbaum] is now part of the JAFL shareholder team and will be remunerated only out of JAFL fees, his budget will be available to one SGH suit if we want to use one.

[12] Mr Eichelbaum reacted negatively. His view was that HLIF would take most of the proceeds. Mr Gavigan (and his wife, who was also part of the investor legal team) would receive significant fees. JAFL would get very little and he and Mr Hayes would get “zero”. Mr Gavigan sought to dissuade him of that. In an email dated 6 April 2011 he said Mr Eichelbaum should come up with a better deal:

Otherwise stand by and cop 10% of what ever i can get for myself[.]

Mr Gavigan and Mr Eichelbaum’s relationship then swiftly deteriorated.

[13] An agreement was reached between JAFL and HLIF in May 2011 (HLIF Agreement). HLIF were to pay the costs of litigation, including pre-agreement costs incurred, with a sum to be repaid to HLIF on successful resolution of the Feltex litigation. The effect of what was achieved was described by Whata J in these terms:^[8]

[Deleted in public version]

[14] In May 2011 Mr Eichelbaum invoiced for his attendances in November and December 2010. He did so again in August for services in June and July 2011. Although the appellants’ submissions assert that Mr Eichelbaum was paid for his services on invoice for the period March 2010 to September 2011, the evidence disclosed no invoice for services earlier than November 2010 nor later than July 2011.
[15] Mr Eichelbaum’s services were not required for the remainder of the year. In late December 2011, Mr Eichelbaum emailed Mr Gavigan noting that while Mr Gavigan’s wife had been budgeted to receive $1 million and Mr Gavigan $1.25 million, he and Mr Hayes were “left out in the cold”. In February 2012 Mr Eichelbaum wrote:

if either of you had a skerrick of decency you would have at least offered [Mr Hayes] and I the 10% of the JAFL fees to which we are legally entitled[.]

It is clear the reference to “JAFL fees” means the Project Management Fee referred to earlier.^[9]

[16] In March 2012 Mr Eichelbaum then proffered two draft letters making various adverse and unpleasant comments about Mr Gavigan. These were also forwarded to the solicitors acting for the investors in the Feltex litigation, Wilson McKay. This exchange led to JAFL’s solicitors, Buddle Findlay, writing to Mr Eichelbaum. They claimed the draft letters were inappropriate and in breach of Mr Eichelbaum’s obligations to JAFL. A complaint to the New Zealand Law Society was foreshadowed.

Mr Eichelbaum’s statutory demand and threatened disclosure

[17] In August 2012 Mr Eichelbaum issued a statutory demand to JAFL. Its basis was an alleged agreement reached following mediation. He demanded $150,000. JAFL instructed Buddle Findlay to have the demand set aside. A week later Mr Eichelbaum withdrew the demand. He nevertheless maintained the validity of the underlying claim.
[18] In September 2012 Mr Eichelbaum sought to exercise his option to take the shares. He reiterated a threat of proceedings. He attached, without prejudice, a copy of his proposed pleadings and a copy of an affidavit alleging various personal details much to Mr Gavigan’s discredit. A complaint was filed with the New Zealand Law Society in October 2012 in response.^[10] This resulted in the censure of Mr Eichelbaum by the New Zealand Law Society for unsatisfactory conduct and misconduct.
[19] Mr Eichelbaum later emailed Mr Forbes QC advising the affidavit had been filed with the High Court and that he would make it available to this Court. He noted a risk the defendants in the Feltex litigation might discover the affidavit. The intent was obvious.

Commencement of present proceedings and claims

[20] The present proceeding was commenced in late 2015. As Whata J noted in the first paragraph of his judgment Mr Eichelbaum sought to recover the moneys said to be payable to him on three bases. First, that Mr Gavigan, in breach of the Fair Trading Act 1986 (FTA), misled him into believing he would share in the JAFL Project Management Fee in proportion to his shareholding. Secondly, that Mr Gavigan oppressively appropriated to himself the JAFL Project Management Fee in breach of the rights of minority shareholders. And thirdly that Mr Gavigan breached a stakeholders’ agreement by not allocating the JAFL Project Management Fee in proportion to his shareholding. A fourth claim based on quantum meruit was withdrawn at the hearing. Mr Eichelbaum claimed compensation in the sum of $150,000 together with interests and costs.
[21] JAFL counterclaimed compensation for legal fees incurred in respect of Mr Eichelbaum’s breach of fiduciary duty to JAFL. It sought, indicatively, some $50,400 as part of an inquiry into damages.

Share transfer judgment

[22] In 2013 Mr Eichelbaum issued a second proceeding seeking an order under s 91 of the Companies Act 1993 that his 10–per-cent shareholding in JAFL be registered. Thomas J dealt with this separately in the share transfer judgment referred to earlier.^[11] Thomas J upheld Mr Eichelbaum’s claim to have the shares registered, thus converting his equitable rights (upon exercise of the admitted option) to legal ones. The essential reasoning has been set out already. The Judge rejected Mr Gavigan’s defences that the 2009 agreement had been varied or cancelled, that Mr Eichelbaum’s claim had been settled, and that his conduct amounted to a breach of the agreement with Mr Eichelbaum that prevented the option being exercised.
[23] There is no appeal from the share transfer judgment.^[12]

Judgment appealed

[24] Whata J in a judgment delivered on 29 April 2016 reached the following conclusions:^[13]

• (a) Mr Gavigan was liable for misleading and deceptive conduct under s 9 of the FTA;^[14]
• (b) Mr Gavigan and JAFL were liable under s 174 of the Companies Act for oppressive conduct toward Mr Eichelbaum as a minority shareholder;^[15]
• (c) Mr Eichelbaum’s separate claim to the existence of a stakeholders’ agreement was dismissed;^[16] and
• (d) JAFL’s counterclaim for legal costs incurred preventing Mr Eichelbaum from disclosing information that would have affected the representative action against Feltex was dismissed.^[17]

[25] Whata J released a second judgment relating to relief and costs. He held that JAFL or Mr Gavigan must pay $71,174 to Mr Eichelbaum, plus interest. Costs and disbursements were reserved pending the outcome of this appeal.^[18]

Issues

[26] The appellants’ notice of appeal left no stone unturned (and then thrown). Some discipline was brought to bear in the written submissions prepared by Mr Gavigan himself on the appeal, and Mr Gilchrist on the cross-appeal.
[27] Mr Eichelbaum filed a “notice of grounds on which the judgment ... is supported and grounds of cross appeal”. Unhelpfully the two are completely intertwined. Various points are made in support of the judgments appealed, and a suggestion is made that if there is error in the relief judgment, then on an alternative basis a higher sum would be appropriate.
[28] We consider the issues we need to resolve are confined to these:

• (a) Issue 1: Was Whata J wrong to conclude Mr Gavigan had engaged in misleading and deceptive conduct under s 9 of the FTA?
• (b) Issue 2: Was Whata J wrong to conclude relief should be granted under s 174 of the Companies Act?
• (c) Issue 3: Was Whata J wrong to conclude Mr Eichelbaum’s claim was not estopped?
• (d) Issue 4: Was Whata J wrong to conclude costs claimed in respect of the counterclaim were too remote?
• (e) Issue 5: Should any suppression orders be made in this judgment?

Issue 1: Was Whata J wrong to conclude Mr Gavigan had engaged in misleading and deceptive conduct under s 9 of the FTA?

High Court decision

[29] Whata J concluded Mr Gavigan had engaged in misleading and deceptive conduct under s 9 of the FTA having led Messrs Eichelbaum and Hayes to believe they would share in JAFL’s Project Management fee (on resolution of the Feltex litigation) on an 80:10:10 basis, and then allocating to himself more than $887,000 without equivalent pro rata payments to Messrs Eichelbaum and Hayes.^[19] As the Judge put it:^[20]

In my view, G departed from the underlying premise upon which E and H contributed to JAFL, namely that they would share in JAFL’s Project Management Fee on an 80/10/10 pro rata basis. That G has acted in this way is also contrary to his representation in April 2011 that E and H would “cop 10%” of whatever he got.

[30] The Judge concluded:^[21]

In summary, I find G’s conduct was, objectively assessed, misleading insofar as:

(a) G led H and E to believe in 2009 that the shareholders would receive a pro rata share of JAFL’s management fees, then being the Project Management Fee on Resolution.

(b) Prior to April/May 2011, G did not forewarn E and H that he would receive $240,000 per annum in management fees in addition to his 80 per cent share of the Project Management Fee.

(c) G told E and H that they would get 10 per cent of what he got (which was confirmatory of the prior representation noted at (a)).

(d) 50 per cent of the Project Management Fee is now paid to JAFL in advance of Resolution as JAFL Management Fees.

(e) JAFL’s payment of $887,478.28 for G’s management services and the accrual of $522,000 to G for past services substantially skewed the allocation of JAFL’s fees in G’s favour, contrary to the expectation that the JAFL’s Project Management Fee would be shared on an 80/10/10 basis.

(f) E and H were not afforded a similar opportunity to earn a revenue stream out of the litigation (though I accept they were offered some work and received payment on invoices for their services which is relevant to relief for the misleading conduct).

[31] As to whether Mr Eichelbaum was misled in fact, Whata J concluded:^[22]

For the reasons given, I am satisfied that E was actually misled by G in two respects. First, G led E to believe that he would share pro rata in JAFL’s Project Management Fee, but then took a very substantial income stream based on management fees, without genuinely affording E a similar opportunity, and largely to at E (and H’s) expense in the event of Resolution. Second, G never forewarned E or H that he would take a very substantial sum in personal fees at the expense of JAFL’s Project Management Fee until after E had performed his services for JAFL.

[32] The Judge doubted, however, that relief under s 43 of the FTA would be appropriate, in part because the loss related to a combination of reliance losses (expenditure of time) and expectation loss relating to a contingent interest.^[23] That view was restated in the subsequent relief judgment. The Judge preferred to grant relief under s 174 of the Companies Act, rather than s 43 of the FTA.^[24] The approach to quantification ultimately taken by the Judge under s 174 was a simple one: Mr Gavigan had received $711,740 out of the Project Management Fee which HLIF effectively had prepaid to JAFL. Mr Eichelbaum should receive 10 per cent, that is $71,174.^[25]

Submissions

[33] The appellants’ first challenge to this aspect of the judgment is based on his “primary submission” that the Judge failed to decide the case on the basis of the pleadings, so that the judgment should be set aside. Central to Mr Eichelbaum’s claim, the appellants say, was a pleading that there was a stakeholders’ agreement between Messrs Gavigan, Eichelbaum and Hayes. Yet the Judge concluded, they say, “there was in fact no stakeholders’ agreement”, and that has not been challenged on cross appeal.
[34] Secondly, the appellants say the judgment erred in concluding Mr Eichelbaum was led to believe he would share in the Project Management Fee when he agreed to provide his services. In particular they say the agreement to provide the services was concluded before the alleged statement about the Project Management Fee was made and cannot have induced the respondent to provide the services. Further, there is no pleading of such inducement. Further, Mr Gilchrist submits the statement as to sharing was either a contractually enforceable promise (which it cannot be, because the cause of action based on the existence of a stakeholders’ agreement was dismissed and not cross-appealed) or a claim for an expectancy based on a mere representation as to future conduct.
[35] Mr Eichelbaum sought to uphold the judgment. That of course depended on relief being granted under s 174 of the Companies Act rather than s 43 of the FTA. Alternatively the obligation to share the Project Management Fee in the agreed proportions was “part of the original contractual obligations” rather than part of a separate stakeholders’ agreement (being the dismissed and not-pursued third cause of action). What the Judge said on that point was this:^[26]

In my view the documentary trail shows that E was led to believe that he would share in the Project Management Fee when he agreed to provide his services, rather than entered into an additional agreement that would yield 10 per cent of JAFL fees. I note that E submitted in closing that consideration was provided “if the share in the 25% fee was not part of the original contract.”

Discussion

[36] We reject the appellants’ primary submission based on pleading. The statement of claim is no model of clear pleading. But it is clear enough. An agreement (between Messrs Eichelbaum and Gavigan, and JAFL) for the provision of services, made in or about October or November 2009, is pleaded. A further “evolved” “stakeholders’ agreement” between the same parties and Mr Hayes, made between October 2009 and March 2010, is also pleaded. Several paragraphs later there is a specific pleading, by way of a first cause of action, of a claim under s 9 of the FTA. The claim is particularised, and a number of those particulars correspond reasonably exactly to the findings of fact and law made by Whata J and set out above. Importantly, the claim is not reliant on the allegation of a “stakeholders’ agreement”. Indeed it is wholly independent of it. That alleged agreement forms the basis of a subsequent cause of action.
[37] We turn to the second appeal point advanced by the appellants. The pleaded allegation of misleading and deceptive conduct is essentially based on two broad representations:

• (a) that Mr Eichelbaum would receive 10 per cent of the Project Management Fee — when it was received in the future; and
• (b) that JAFL would continue to be a low cost operation:

together with the subsequent actions of Mr Gavigan and JAFL by way of the latter paying the former substantial fees — which meant there was nothing left for Mr Eichelbaum. That is the conduct said to be misleading and deceptive. The claim (at [21] of the second amended statement of claim filed by leave shortly before trial) is that in reliance on these representations had the effect of inducing him to work for four months (presumably in total) across a two year period from June 2009 to June 2011 without remuneration. The Judge’s analysis, set out above,^[27] focused on the first representation but not the second.

[38] These two representations are ones of future intent. The general position is that representations as to future intent are not actionable under s 9.^[28] Representations can only be misleading or deceptive where they relate to present or past facts. Therefore a person may establish misleading or deceptive conduct in respect of a representation of future intent where it can be proved the person making the representation did not intend to carry out the promise at the time it was made.^[29] The authors of Law of Contract in New Zealand suggest there may be room for some relaxation of that principle where the impact of the representation has been to mislead.^[30] Whether or not that is so will nonetheless depend on the pleading, and the evidence.
[39] As a related point, a majority of a Full Court of this Court in Cox & Coxon Ltd v Leipst stated expectation damages are not recoverable under the FTA as they may be in contract.^[31] The FTA’s remedial provisions make available a remedy for loss occasioned by the representation, but not for loss of the expected position had the misrepresentation been true. The measure of the loss relates to harm caused by engaging in misleading conduct rather than requiring a defendant to honour an expectation or promise made to a plaintiff. Mr Eichelbaum’s contention is essentially that he expected a 10-per-cent share in the Project Management Fee as a result of misrepresentations made by Mr Gavigan. He says they induced him to supply services to JAFL. And that under the FTA he should be entitled to damages in the sum of 10 per cent of the Project Management Fee received by JAFL. But that is an expectation loss and Mr Eichelbaum is not entitled to it under ss 9 and 43 of the FTA simply on the basis that he expected to share in the Project Management Fee in that way. Instead, he must point to and prove the particular loss that he has suffered by reason of the misrepresentations both pleaded and proved on the evidence.
[40] We turn now to the evidence. The Judge found the first representation noted at [37] of this judgment was made. That finding must be right. It seems to us that this is less a representation than a simple promise made — at the end of October 2009 and beginning of November 2009 — associated with Mr Eichelbaum acquiring a shareholding in JAFL. As JAFL was to receive the Project Management Fee, Mr Eichelbaum would receive 10 per cent of it. The 2 November 2009 email from Mr Gavigan confirmed that. From that point Mr Eichelbaum continued to supply services for the next eleven months without invoice or payment. The logical pleading in these circumstances would be a simple contract claim based on supply of the services being consideration for the promised fee share (and that he had not received his portion while Mr Gavigan had). In other words, what Mr Eichelbaum described as “the original contractual obligations” rather than the elaborately pleaded (but unsuccessful) third cause of action based on a separate stakeholders’ agreement. The Judge dismissed that cause of action and that conclusion is not challenged on cross-appeal. An alternative claim that might also have served, in quantum meruit, was abandoned at trial.
[41] The result, which may be unfortunate for Mr Eichelbaum, is that there is no simple contract claim for the fee extant. The claim has instead to be analysed under the FTA and Companies Act, and those grounds alone. They pose barriers contract may not have. But Mr Eichelbaum is an experienced barrister and he has pleaded his case in this way. The error in the High Court appears to have arisen as a result of the parties’ assumption the relevant representations were terms capable of enforcement through s 9 of the FTA. However the representations are plainly to be characterised and analysed as statements of future intent.
[42] We return to the pleaded case of misleading and deceptive conduct under the FTA and the first representation. We accept, as the Judge did, that it was made. But to be actionable under s 9 there must be evidence that Mr Gavigan did not intend to perform it. Either at the time he made it or, perhaps, a changed intent formed during the time Mr Eichelbaum continued to perform services in reliance on the original representation. That is, that he was in fact misled or deceived.
[43] We can find no evidence however that Mr Gavigan did not intend to conform to this representation (to the extent it was one) when he made it or during the time Mr Eichelbaum was working without payment. Mr Eichelbaum had the burden of proof. This was a matter on which Mr Gavigan needed to be cross-examined. The cross-examination did not establish any relevant intent to mislead or deceive at the time the representations were made. Arguably cross-examination of Mr Gavigan indicates the contrary:

17. You’re not able to point to any written notification to the minorities at any time before March 2011 that you intended to start paying yourself 240,000 per annum plus expenses, are you?
1. I had discussions with Mr Hayes, who was the only minority and the emails between us have been available to him and to this Court.
17. Well that’s a rather evasive –
1. I had no discussions with you because you –
17. – that’s a rather evasive answer, if you don’t mind me saying so.
1. I had no discussions with you.
17. If there are emails, of course you would have been a party to the email. Do you say that there is an email that notifies Mr Hayes or I that you are going to take 240,000 per annum plus expenses out of JAFL prior to March 2011?
1. No of course there wasn’t because the agreement with JAFL and Harbour was not entered until May and it was settled in June 2011.
17. If you had sent such an email, the minorities might have reconsidered the amount of additional work they performed for JAFL.
1. No, what happened was that when you heard of the Harbour agreement, you and Mr Hayes put your hand out for $400,000, up front, from the litigation funding money. That’s what happened.
17. I’d completed my work by 2^nd March 2011 because you’d invited me to exercise the option on that date.
1. That’s correct ...

[44] This tends to confirm the inference we draw from the evidence that only after the change of circumstance in mid-2011 — when HLIF’s participation was secured and they agreed to advance funds to JAFL — did Mr Gavigan resolve to charge the personal fees that Mr Eichelbaum complains of.^[32] The Judge found the common expectation was that the Project Management Fee would be paid to JAFL (and thence the protagonist here together with Mr Hayes) on resolution of the Feltex litigation.
[45] Indeed the way Mr Eichelbaum pleaded his s 9 cause of action was in part as “waiting until the plaintiff had performed and given all his consideration and then changing the cost structure”. The words “and then” plainly indicate Mr Eichelbaum’s contention is that at some point after the representations were made Mr Gavigan formed a view that he would implement payments to himself. The evidence does not support a claim that Mr Gavigan did not intend to honour the November 2009 representation when he made it. Nor does the evidence enable an inference to be drawn to the standard required that Mr Gavigan decided to impose the new costs structure (by paying himself fees) at a time when Mr Eichelbaum was still performing services unpaid (as he alleges) in reliance on the representation. Most of Mr Eichelbaum’s work appears to have been undertaken in October and November 2009, with some attendances after that in 2010 and 2011. From November 2010 the attendances were billed by Mr Eichelbaum. He suggests in the passage from the evidence quoted above that he had completed his services by 2 March 2011. As best as we can glean from the evidence, the prepayment of funds by HLIF first emerged after 2 March 2011, during negotiations in April and May 2011.
[46] We turn now to the second representation. The Judge did not make explicit findings on this representation. He took another approach. He held that it was misleading conduct for Mr Gavigan, in the face of the representation, to take substantial personal fees without genuinely affording Mr Eichelbaum a similar opportunity or forewarning him of that intention.^[33] Mr Gavigan’s brief of evidence states: “The cost structure of JAFL was not heavy. The total costs of managing the project has been just over 10% of the funds managed”. In cross-examination it was put to Mr Gavigan whether that included the time before June 2011 “when you took 1.1 million out, or after?” Mr Gavigan confirmed he was referring to the operations of JAFL for the time being.
[47] The cross-examination of Mr Gavigan does not, as we have already said, enable an inference to the standard required that Mr Gavigan decided to impose the new costs structure (by paying himself fees) at a time when Mr Eichelbaum was still performing services unpaid (as he alleges) in reliance on the representation. It is unnecessary in this evidential vacuum to refer to the evidence of the witness Mr Granger called for the appellants. Mr Eichelbaum argues that that evidence did not comply with r 9.43 of the High Court Rules 2016. It is unnecessary for us to address that argument or the evidence itself.
[48] We therefore find the evidence does not sustain the misleading and deceptive conduct alleged.

Conclusion

[49] We answer Issue 1 “yes”. We consider Whata J erred in his analysis under the FTA.

Issue 2: Was Whata J wrong to conclude relief should be granted under s 174 of the Companies Act?

High Court decision

[50] Whata J regarded the key issues the Court was asked to resolve as subsumed by his finding that Mr Gavigan had represented to Messrs Eichelbaum and Hayes that they would share pro rata in the Project Management Fee.^[34] In his view that funding provided a proper basis for finding oppressive conduct for the purpose of s 174. That is, it was demonstrably unfair to Mr Eichelbaum to apply the advance payments of the Project Management Fee received from HLIF largely to Mr Gavigan’s exclusive benefit and contrary to their reasonable expectation of a pro rata share.^[35] This was oppressive conduct for s 174 purposes. The quantum of the s 174 award “should mirror” the FTA remedy.
[51] Significantly the Judge held that absent the findings of misleading and deceptive conduct, there would have been no s 174 oppression. Simply the same expectation of return as a shareholder on resolution of the litigation.^[36]
[52] In his subsequent relief judgment, Whata J preferred to fix relief under s 174 rather than under the FTA. The reason given was:^[37]

The availability of FTA relief in a context where the primary loss is expectancy loss (i.e. an expectation to receive 10% of a contingent profit) is doubtful. By contrast, E’s expectation as a shareholder that he would receive 10% of the Project Management Fee is the type of expectation that s 174’s just and equitable jurisdiction is designed to secure.

(Footnote omitted.)

[53] As noted earlier, the calculation adopted by the Judge was a simple one: Mr Gavigan had received $711,740 out of the Project Management Fee allocation.^[38] Mr Eichelbaum should receive 10 per cent, or $71,174.

Submissions

[54] Mr Gavigan submits Whata J was wrong to find Mr Eichelbaum suffered loss for which he is entitled to compensation under s 174. Mr Gavigan says Mr Eichelbaum did not suffer loss either in fact or as pleaded in his second amended statement of claim. Because Whata J deployed his findings in relation to what he saw as Mr Gavigan’s misleading or deceptive conduct as demonstrating oppressive conduct for the purpose of s 174, Mr Gavigan’s submissions on this head were pegged to those findings of misleading or deceptive conduct. They do not require repetition here in the light of our conclusion to Issue 1.
[55] Mr Eichelbaum seeks to uphold the decision of the Judge. Oppression did not require breach of contract. The minority expectations of sharing in the Project Management Fee were upheld by the Judge, and corroborated by the two key emails in November 2009 and April 2011. The minorities were misled into doing substantial work over a multi-year period by promises, confirmed in the emails, that they were to share pro rata in the Project Management Fee. There was no complaint whatever about the quality of the work done.

Discussion

[56] The Companies Act provides:

174 Prejudiced shareholders

(1) A shareholder or former shareholder of a company ... who considers that the affairs of a company have been, or are being, or are likely to be, conducted in a manner that is, or any act or acts of the company have been, or are, or are likely to be, oppressive, unfairly discriminatory, or unfairly prejudicial to him or her in that capacity or in any other capacity, may apply to the court for an order under this section.

(2) If, on an application under this section, the court considers that it is just and equitable to do so, it may make such order as it thinks fit including, without limiting the generality of this subsection, an order—

...

(b) requiring the company or any other person to pay compensation to a person

...

(Our emphasis.)

[57] Two difficulties confront Mr Eichelbaum.
[58] The first is that the Judge’s decision to grant relief under s 174 was wholly dependent on his finding that there had been misleading and deceptive conduct by Mr Gavigan that had induced Mr Eichelbaum to undertake otherwise unpaid services for JAFL. Absent finding misleading and deceptive conduct, the Judge would not have found oppression. But we have concluded that there was no actionable misleading and deceptive conduct. That is fatal to upholding the Judge’s s 174 analysis.
[59] Secondly, we do not consider that s 174 can apply here in any event.
[60] An application may be made under s 174 of the Companies Act by a shareholder, former shareholder or “entitled person”. We are dealing only with the first of these.^[39] The High Court considered the question of standing under s 174 in RPB Solutions Ltd v Avoca Holdings Ltd.^[40] Ellis J held a beneficial interest was insufficient to ground standing:^[41]

Unlike the Canadian definition of “complainant” the statutory definition of “shareholder” very clearly does not encompass those with beneficial interests or ownership; the only focus of the relevant part of the definition is on the person whose name is entered on the share register. Nor do the words of s 174 contemplate enforcement action being taken by those with such interests.

Ellis J was there dealing with the interpretation of “former shareholder”. She was not addressing the situation we have here, where a person subsequently registered as the legal owner of shares alleges oppressive conduct at a time prior to their registration (and acquisition of legal interest in the shares) and when they have a beneficial interest in those shares.

[61] Lloyd v Casey, a Chancery Division decision, did however address that situation.^[42] The equivalent to the New Zealand s 174 was s 459 of the Companies Act 1985 (UK) (now repealed). It provided:

(1) A member of a company may apply to the court by petition for an order under this Part on the ground that the company's affairs are being or have been conducted in a manner which is unfairly prejudicial to the interests of its members generally or of some part of its members (including at least himself) or that any actual or proposed act or omission of the company (including an act or omission on its behalf) is or would be so prejudicial.

(2) The provisions of this Part apply to a person who is not a member of a company but to whom shares in the company have been transferred or transmitted by operation of law, as those provisions apply to a member of the company; and references to a member or members are to be construed accordingly.

[62] Messrs Lloyd and Casey incorporated a company to provide services to Mr Lloyd’s employer. Mr Casey held 51 per cent of the shares in that company (and was the managing director). Mr Lloyd held 44 per cent, but to conceal Mr Lloyd’s involvement his shares were held in trust by Mr Casey. Mr Lloyd became displeased with Mr Casey’s management of the company. A decade after incorporation he became registered shareholder in his own right. He then presented a petition under s 459 complaining of oppression in the era preceding his share registration.
[63] Mr Casey contended actions before registration fell outside s 459. That was rejected by Ferris J. He said such an interpretation would produce a strange situation for the legal owner of the shares.^[43] Assuming there had been some unfairly prejudicial conduct to the interests of everybody interested in the company except Mr Casey, there would be some unfairly prejudicial conduct in relation to Mr Casey’s interests as a trustee holding shares for Mr Lloyd, though not to his interests as holder of his own shares. Clearly, Ferris J said, Mr Casey would not petition under s 459 if Mr Lloyd took steps to enforce the trust and the court could not direct Mr Casey to take proceedings against himself.
[64] Ferris J also pointed to the words in s 459(1) “the company’s affairs are being or have been conducted in a manner which is unfairly prejudicial”. The relevant conduct may therefore not simply be continuing but may have occurred in the past.^[44] That approach too was in his view supported by authority. Ferris J noted:^[45]

It is clearly implicit ... that, just as the petitioner in Re JN2 Ltd would, if and when he became registered as a member, be able to support a winding-up petition on just and equitable grounds by relying on matters occurring before his name was entered on the register of members, so a petitioner for relief under s 459 would, after registration as a member, be able to support the petition by relying on conduct which took place before that time.^[46]

(Our footnote.)

[65] That view is endorsed by the authors of Company Law in New Zealand.^[47] They note that result is not inconsistent with RPB Solutions. That decision dealt with standing under s 174 only as it applied to a shareholder at the time the conduct forming the basis of the application occurred. We agree with the conclusion in Lloyd v Casey that a shareholder has standing to claim oppression of a minority in respect of a period prior to registration of their shareholding when their holding was a beneficial one.
[66] How does this apply to Mr Eichelbaum? There were three distinct phases in Mr Eichelbaum’s interest in JAFL. He was an option holder until September 2012. That created a mere equity only.^[48] He was neither shareholder nor a beneficially entitled shareholder during the period of the option. This however was the period in which the alleged oppressive conduct occurred, concerning the creation of expectations and the performance of services, combined with entry into agreement, in June 2011, with JAFL for the payment of substantial personal fees to Mr Gavigan. We have found that Mr Gavigan did not act in a misleading or deceptive fashion during this period in any event. The Judge’s s 174 conclusion depended wholly on a contrary finding.^[49] In any event, at the relevant time Mr Gavigan held the entire beneficial and legal shareholding in JAFL. The extension of standing given in Lloyd v Casey to a subsequent shareholder to complain of events during the period when he was a non-registered beneficial shareholder is understandable. But it is another thing again to conclude that s 174 offers relief for events occurring when that shareholder was a mere option holder. Particularly one who then exercises the option in knowledge of the events complained of.^[50] Given the lack of factual underpinning for the claim, that is not a matter we need finally resolve in this judgment.
[67] Consideration might have been given to whether payment of some of the Project Management Fee to Mr Gavigan alone after September 2012 (when Mr Eichelbaum became a beneficial shareholder) was oppressive. Unhelpfully the case was not presented in that way. Mr Eichelbaum did not point us to evidence of misleading or deceptive conduct after that date. Indeed his written submissions assert Mr Gavigan “introduced” payments totalling $1,103,149 on 6 April 2011. That state of affairs existed prior to his exercising his option. Nor did he lead evidence to suggest that the fees paid by JAFL to Mr Gavigan during this period were grossly beyond their value, on which basis oppressive conduct might be able to be inferred. He objects to Mr Granger’s evidence to the contrary, which we have put aside.^[51] But the burden lay on Mr Eichelbaum and he led no evidence to discharge it.
[68] We do not think that s 174 can avail Mr Eichelbaum.

Conclusion

[69] We answer Issue 2 “yes”. Whata J erred in concluding that Mr Gavigan engaged in oppressive conduct contrary to s 174 of the Companies Act and that compensation should be awarded under that section.

Issue 3: Was Whata J wrong to conclude Mr Eichelbaum’s claim was not estopped?

High Court decision

[70] A defence advanced by the appellants before Whata J was that the share transfer judgment given by Thomas J in September 2015 gave rise to an issue estoppel against Mr Eichelbaum’s claim.^[52] Mr Gavigan claimed Thomas J’s judgment, ordering the registration of 10 per cent of JAFL’s shares in Mr Eichelbaum’s name, dealt with his entitlement and this further claim should therefore be precluded.
[71] Whata J rejected that defence.^[53] Thomas J’s decision had confirmed Mr Eichelbaum was entitled to a 10-per-cent shareholding. The issue before Whata J however was a different and distinct one: whether Mr Eichelbaum was entitled to 10 per cent of the Project Management Fee.

Discussion

[72] Mr Gilchrist renewed essentially the same argument before us. It can be dealt with briefly. Whata J was plainly correct to conclude Mr Eichelbaum’s claim was not precluded by issue estoppel. First, for the reasons noted in the previous paragraph of this judgment. Secondly, because the share transfer judgment dealt with only one of the issues in the proceedings between Messrs Eichelbaum and Gavigan as a separate and preliminary question. It did not purport to resolve the remaining issues between them, being those then addressed by Whata J.

Conclusion

[73] We answer Issue 3 “no”.

Issue 4: Was Whata J wrong to conclude costs claimed in respect of the counterclaim were too remote?

High Court decision

[74] JAFL counterclaimed seeking compensation for legal fees incurred with respect to Mr Eichelbaum’s breaches of fiduciary duty.
[75] Whata J found JAFL was Mr Eichelbaum’s client and he therefore owed it fiduciary obligations.^[54] Additionally, Mr Eichelbaum breached his duty of confidence to JAFL when he threatened to publish confidential matters as leverage in settlement discussions. However, the damage JAFL claimed to have suffered as a result of Mr Eichelbaum’s actions — namely the cost of correspondence with Mr Eichelbaum in relation to threatened disclosure, the drafting of applications for confidentiality orders, and complaints to the Law Society — was too remote.^[55]

Submissions

[76] Mr Gavigan contends Whata J was wrong to conclude they had not made out their claim for damages on the basis those costs were too remote. He says the counterclaim did not seek a specific sum. Whata J was wrong to dismiss the claim without conducting an inquiry — which was sought — without hearing evidence.
[77] Mr Eichelbaum seeks to uphold the judgment, save that he protests that breach of fiduciary duty was not adequately pleaded by the appellants in the first place.

Discussion

[78] Again we can deal with this peripheral appeal ground quite briefly. In doing so we see no cogent basis whatever for interfering with the Judge’s conclusions that breach of fiduciary duty was adequately pleaded (by referring to breach of s 4 of the Lawyers and Conveyancers Act 2006). Nor, given the findings of the Disciplinary Tribunal (upheld by Venning J on appeal),^[56] can breach of fiduciary duty by Mr Eichelbaum be contested. Sensibly, the pleading point apart, it was not.
[79] The general rule is that the legal costs of pursuing a claim may not be recovered as damages.^[57] This Court addressed the issue of recoverability of legal costs as damages in Boswell v Miller.^[58] There Ms Boswell sought recovery of legal costs incurred in the course of negotiating who would take responsibility for ensuring a house that was subject to a sale and purchase agreement complied with relevant consent and planning requirements. The Court rejected the claims for legal costs as damages. Costs incurred pursuing a claim, the Court said, were not recoverable as damages for breach of contract.^[59] Ms Boswell failed to demonstrate the costs were recoverable as damages. The costs were too remote as losses flowing from steps taken to enforce contractual rights rather than flowing from the breach itself.^[60]
[80] Boswell v Miller was not cited to us despite its centrality to Whata J’s analysis. We see no reason to depart from the general position expressed there, which appears to us equally applicable to breach of fiduciary duty as to breach of contract. Certainly no persuasive argument to do so was advanced before us. We accept that the principle is not an absolute one, and that limited exceptions can be identified. In Peters v Peters two exceptions were noted.^[61] First, costs that could not be recovered in proceedings involving a third party. Secondly, costs incurred in relation to proceedings between the same parties but where the claimant relies on an independent cause of action.^[62] It was not argued that these exceptions apply here and we decline to offer a concluded view on the matter. We reserve discussion of that to a case where it is directly in issue and properly argued. We agree with the Judge that the legal costs sought here are too remote, flowing from a desire to protect and enforce legal rights, and to advance disciplinary complaints, rather than flowing directly from any demonstrable breach.

Conclusion

[81] We answer Issue 4 “no”.

Issue 5: Should any suppression orders be made in this judgment?

[82] Whata J made a suppression order as to information contained in the High Court judgment in relation to various details of the HLIF Agreement and certain paragraphs of the judgment itself.^[63] Additionally, the Judge anonymised names in the judgment delivered to the parties, although he saw no need for continuing suppression after publication of the judgment because those persons would be readily identifiable in any event.^[64]
[83] Mr Houghton, the representative plaintiff in the Feltex litigation, has filed a memorandum seeking continuation of suppression in the terms Whata J ordered. He points to JAFL’s involvement in the litigation as having led to the defendants in the Feltex litigation initiating several costly challenges. He is concerned further disclosure will lead to more challenges. He also seeks continued suppression of the names of persons referred to by pseudonym in the High Court judgment.
[84] We have prepared this judgment bearing those concerns in mind, striking a balance between open justice on the one hand and any necessary protection of rights of privacy. We have therefore minimised detail which might be prejudicial on publication so far as reasonably possible. We see no justification for suppression of the names of any of the parties to this appeal, of Mr Hayes’ identity and of any other persons named in this judgment. However we accept some justification might exist for the redaction of quoted text at [13] of this judgment in any published version of this judgment, until conclusion of the Feltex litigation.
[85] The Court will receive very brief submissions from the parties (and Mr Houghton) on whether the public version of this judgment (and those in the High Court) should be redacted, how that redaction may be justified in light of the decisions in Erceg v Erceg and Y v Attorney-General reinforcing the primacy of open justice and the need for exceptional adverse consequences, to what extent redaction is justifiable and necessary, and how long any redaction should last.^[65]
[86] To that end we will direct that the judgment not be published beyond the parties, Mr Houghton and their counsel until further order to enable receipt of such submissions. They must be filed within seven days. We will deal with the matter thereafter on the papers.

Conclusion

[87] The appeal is allowed.
[88] The cross-appeal is dismissed.
[89] [Deleted in public version]
[90] The respondent must pay the appellant costs for a standard appeal on a band A basis and usual disbursements.

Postscript

[91] We have received submissions from Mr Houghton in accordance with [86] above. As a result we have in this public version of the judgment deleted the quotation from the judgment of Whata J at [13] above. We have also deleted the order prohibiting further publication from this public version of this judgment.
[92] Any issue of continued suppression of judgments in other Courts is a matter for those Courts. This judgment does not alter suppression orders made in those Courts.

---

^[1] E v G [2015] NZHC 824 [Substantive judgment].

^[2] E v G [2016] NZHC 1214 [Relief judgment] at [29].

^[3] Houghton v Saunders [2009] NZCA 610, [2010] 3 NZLR 331.

^[4] Substantive judgment, above n 1. “E” is Mr Eichelbaum, “G” Mr Gavigan and “H” Mr Hayes.

^[5] Eichelbaum v Joint Action Funding Ltd [2015] NZHC 2163 [share transfer judgment] at [46]. See [22] of this judgment.

^[6] Share transfer judgment, above n 5, at [25].

^[7] At [68]-[69].

^[8] Substantive judgment, above n 1.

^[9] See [6] of this judgment.

^[10] Substantive judgment, above n 1, at [56]–[59].

^[11] See [9] of this judgment.

^[12] There was however an appeal from a subsequent costs decision: E v J [2016] NZHC 416. This Court determined Mr Eichelbaum was not entitled to recover costs as a self-represented barrister sole: Joint Action Funding Ltd v Eichelbaum [2017] NZCA 249 at [66].

^[13] Substantive judgment, above n 1, at [169].

^[14] At [82]–[135].

^[15] At [146].

^[16] At [150].

^[17] At [155]–[169].

^[18] Relief judgment, above n 2, at [17].

^[19] Substantive judgment, above n 1, at [96] and [143].

^[20] At [113].

^[21] At [116].

^[22] At [131].

^[23] At [136].

^[24] Relief judgment, above n 2, at [5].

^[25] At [11].

^[26] Substantive judgment, above n 1, at [150].

^[27] See [29]–[31] of this judgment.

^[28] McKeown Group Ltd v Russell [2010] NZHC 1492; (2010) 13 TCLR 1 at [29].

^[29] Love v Auburn Apartments Ltd HC Auckland CIV-2009-404-725, 28 February 2011 at [91].

^[30] John Burrows, Jeremy Finn and Stephen Todd Law of Contract in New Zealand (5th ed, LexisNexis, Wellington, 2016) at 378.

^[31] Cox & Coxon Ltd v Leipst [1998] NZCA 202; [1999] 2 NZLR 15 (CA) at 34.

^[32] It is unnecessary to decide for these purpose whether the funds flowing from HLIF were part of the Project Management Fee which Mr Eichelbaum was to share or not. The Judge held they were. We are not persuaded that this assessment erred.

^[33] Substantive judgment, above n 1, at [131].

^[34] Substantive judgment, above n 1, at [146].

^[35] At [147].

^[36] At [147(c)].

^[37] Relief judgment, above n 2, at [5].

^[38] The figure was identified by counsel for Mr Gavigan, though she had contended that a different calculation basis should apply.

^[39] An “entitled person” as defined in s 2(1) of the Companies Act is a person upon whom the constitution confers any of the rights or powers of a shareholder.

^[40] RPB Solutions Ltd v Avoca Holdings Ltd [2010] 2 NZLR 857 (HC).

^[41] At [23].

^[42] Lloyd v Casey [2002] 1 BCLC 454 (Ch).

^[43] At [49].

^[44] At [50].

^[45] At [52].

^[46] Re JN2 Ltd [1978] 1 WLR 183, [1977] 3 All ER 1104.

^[47] Peter Watts, Neil Campbell and Christopher Hare Company Law in New Zealand (2nd ed, LexisNexis, Wellington, 2016) at [21.3.2(a)], fn 167.

^[48] See for example Kain v Hutton [2008] NZSC 61, [2008] 3 NZLR 589 at [25] and [55]; Hunt v Muollo [2003] NZCA 66; [2003] 2 NZLR 322 (CA) at [11]; and Johns v Johns [2004] NZCA 42; [2004] 3 NZLR 202 (CA) at [31]. In the context of an option holder of shares see Sainsbury plc v O’Connor [1991] 1 WLR 963.

^[49] See [51] of this judgment.

^[50] See for example the email quoted above at [15], sent in February 2012.

^[51] See [47] of this judgment.

^[52] Share transfer judgment, above n 5.

^[53] Substantive judgment, above n 1, at [135].

^[54] At [156].

^[55] At [167].

^[56] Eichelbaum v Canterbury Westland Standards Committee No 2 of the New Zealand Law Society [2015] NZHC 1896.

^[57] Pegasus Group Ltd v QBE Insurance (International) Ltd HC Auckland CIV-2006-404-6941, 1 December 2009 at [234].

^[58] Boswell v Miller [2014] NZCA 314, [2014] 3 NZLR 332.

^[59] At [50].

^[60] At [50].

^[61] Peters v Peters (No 2) [2013] NZHC 1061.

^[62] At [95].

^[63] Substantive judgment, above n 1, at [172].

^[64] At [173].

^[65] Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310; and Y v Attorney-General [2016] NZCA 474, [2016] NZAR 1512.