HYNDMAN v WALKER [2019] NZHC 2188 [3 September 2019]

IN THE HIGH COURT OF NEW ZEALAND

CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA

ŌTAUTAHI ROHE

CIV-2015-485-709

[2019] NZHC 2188

BETWEEN

IAN BRUCE HYNDMAN

Plaintiff

AND

ROBERT BRUCE WALKER

Defendant

Hearing:

13-17 May 2019

Counsel:

J Moss and H M Weston for Plaintiff

R J B Fowler QC and S B McCusker for Defendant

Judgment:

3 September 2019

JUDGMENT OF THOMAS J

Table of contents

Introduction [1]

Background [5]

Alleged distributions of Mr Hyndman’s private information [22]

May 2011 [28]

September 2011 [31]

February 2012 [39]

May 2012 [44]

December 2012 [45]

January 2013 [50]

An inference of further distributions [53]

Disclosure of private information to Grahame Thorne [60]

Provision of flash drives including all emails from the Laptop to Mr Slevin

on 14 June 2011 and 26 August 2011 [63]

Breach of privacy in CIV-2012-409-2486 [67]

Mr Hyndman’s claim [69]

Breach of duty of confidentiality [74]

Does the information have the necessary quality of confidence about it? [75]

Was the information imparted in circumstances importing an obligation of

confidence? [81]

Breach of privacy [90]

Did Mr Hyndman have a reasonable expectation of privacy in relation to his

information on the Laptop? [94]

Did Mr Walker have notice that the information was private? [98]

Would disclosure be considered highly offensive to a reasonable person? [99]

Misfeasance in public office [103]

Breach of statutory duty [107]

Contempt [109]

Result [113]

Introduction

[1] Ian Hyndman is a close friend of David Henderson, a Christchurch

businessman, who has been engaged in a protracted battle with Robert Walker, the

liquidator of Property Ventures Ltd (PVL) and a number of other companies of which

David Henderson was formerly a director. The battle between Mr Henderson and

Mr Walker has become personal. Mr Walker came into possession of a laptop owned

by PVL but used by Mr Henderson for business and personal matters (the Laptop).

Mr Walker or his agents disclosed some of that information to the IRD, the Official

Assignee and other third parties. Mr Hyndman claims his private and confidential

information was included in those disclosures and he has brought proceedings against

Mr Walker claiming breach of confidential information, breach of privacy,

misfeasance in public office, breach of statutory duty and contempt of court.

[2] These proceedings and the factual and legal context are closely tied to parallel

proceedings brought by Mr Henderson under CIV-2014-409-45 and the subject of a

separate decision.1

[3] Mr Hyndman seeks declarations in respect of his five causes of action, orders

that Mr Walker provide a schedule of material accessed and to whom it has been

distributed and $50,000 for personal anguish, humiliation and stress.

[4] Mr Walker denies that he made any unlawful disclosures and, even if he did,

says that none met the required standard to establish the various claims.

1 Henderson v Walker [2019] NZHC 2184.

Background

[5] PVL was placed into receivership in March 2010 and liquidated on 27 July

2010, but the liquidation was stayed until 8 February 2012. This caused Mr Walker

some considerable frustration. However, on 13 December 2010, Mr Walker was

appointed liquidator of five companies that were members of the wider PVL group

and of which Mr Henderson was a former director. Mr Henderson had been

adjudicated bankrupt on 29 November 2010.

[6] Frustrated at what he saw as deliberate non-compliance by Mr Henderson with

his notice pursuant to s 261 of the Companies Act 1993, requiring the records of the

five companies, Mr Walker alerted the police to what he considered was

Mr Henderson’s criminal behaviour by repeated failures to comply with the s 261

notice.2

[7] Following the devastating earthquake in Christchurch on 22 February 2011, a

red zone was erected around the central business district, which included

Mr Henderson’s business premises. Following approval, Mr Henderson entered the

Christchurch red zone and removed the server for PVL.

[8] Following intervention by both Mr Walker and the receiver for PVL, on 6 April

2011 the New Zealand Police were granted search warrants in respect of

Mr Henderson’s business premises at 96 and 110 Lichfield Street, Christchurch (the

Warrants). The police removed boxes of materials, computers and the Laptop. They

also removed a tape drive, which was a backup of PVL’s server (the Tape Drive). The

seized items were provided to Mr Walker.

[9] Mr Henderson has since obtained a declaration that the Warrants were unlawful

and inconsistent with s 21 of the New Zealand Bill of Rights Act 1990.3 Mr Walker’s

role in holding the materials seized as a result of the Warrants is discussed later in this

decision but Mr Hyndman's position is that Mr Walker can only have held those

2 Companies Act 1993, s 258A. 3 GP96 Ltd v Attorney-General HC Christchurch CIV-2014-009-366, 7 May 2015.

materials as agent of the police because the purpose of the Warrants was to seize the

materials in order to determine whether a criminal offence had been committed.

[10] There was media interest in these events, the fact of the Warrants being

reported both by Stuff and The National Business Review (NBR). On 27 May 2011,

NBR published an article headlined, “Who Snitched on Hendo to SFO?”. The article

referred to Mr Walker’s delivery to the Serious Fraud Office of more than 7,000

documents about “numerous inter-company transactions within the Property Ventures

group”. It recorded Mr Walker as having told the NBR he was absolutely determined

in his pursuit of Mr Henderson, which had involved the Warrants in order to obtain

documents. It quoted Mr Walker as saying:

I have about 45,000 emails from him and a great deal of other evidence. He’s

been saying a lot of interesting things.

[11] Concerned about whether Mr Walker had access to his private information and

worried about what he might do with it, Mr Henderson engaged a private investigator,

Wayne Idour. Mr Idour telephoned Mr Walker in early June 2011 and recorded that

telephone conversation. Although there is some dispute about whether Mr Idour

misrepresented himself by saying he was phoning on behalf of a number of creditors

or, as Mr Henderson contended, he was effectively phoning on behalf of

Mr Henderson as a creditor, there is no doubt Mr Walker said some revealing things

in that telephone conversation. He told Mr Idour he held Mr Henderson’s personal

computer with over 5,000 emails. Mr Walker made his personal feelings about

Mr Henderson abundantly clear, using derogatory terms. He described Mr Henderson

as not thinking the law applied to him but then said, by holding Mr Henderson’s

personal computer, “I hold vast amounts of information”. He alluded to the fact he

was not entirely clear whether he had a “complete legal right to all this stuff”. He

referred to Mr Henderson’s access to the red zone, taking the main computer, and then

said:

And that’s where all the data’s sitting. But there was a umm tape backup. I

can’t access it but we’ve got it. We’ve also got other sources of information,

I’ve tried to build it all up, but it’s incredibly difficult and I’m getting

resistance here, there and everywhere. I can see, I can get that basically I’ve

probably got more information than I can ever deal with to be honest umm

and not withstanding that I’m kinda at the margins of the law of being able to

give people stuff. I mean, no doubt he’ll start squealing about the Privacy Act

in the near future and I’ll just say “little pricks like you – you have no rights,

see you in Court, Fuck Off”.

[12] Mr Walker suggested that Mr Idour could “come and look at everything”. He

said he did not know how far he could go and again referred to privacy issues. He

then commented that he would push it right up to the edge and slightly beyond because

he knew Mr Henderson had no means of enforcing anything against him.

[13] Throughout 2011 and 2012, Mr Henderson complained on multiple occasions

to the police, Mr Walker and the Official Assignee about his private information being

held and distributed by Mr Walker. Eventually, around September 2012, Mr Walker

confirmed, following a memorandum of arrangement he entered into with the police,

that he had returned to the police all the records he obtained following the execution

of the Warrants (other than information related directly to the companies of which he

was liquidator).

[14] After investigation, the police decided not to pursue the alleged criminal

offending and applied to the District Court for directions under s 199 of the Summary

Proceedings Act as to who was entitled to the material seized pursuant to the

Warrants.4 Around the same time, Mr Walker applied to the High Court for directions

under s 266 of the Companies Act regarding return of the information to which he

claimed he was entitled as liquidator. By this time, the stay of PVL’s liquidation had

been lifted.

[15] The District Court ordered the return of the Tape Drive.5 By this stage the

Laptop had been returned to Mr Henderson. Associate Judge Osborne (as he then was)

considered orders for possession of the electronic data copied from the Laptop.6

[16] Associate Judge Osborne noted Mr Walker’s undertaking that his immediate

need for the documents was in relation to civil proceedings before the High Court that

were potentially affected by statutory limitations under the Limitation Act 2010. He

specifically referred to Mr Walker’s undertaking that he would not disclose

4 The application was made prior to the Search and Surveillance Act 2012 coming into force. 5 Riach v Property Ventures Ltd DC Christchurch CIV-2012-009-2031, 13 May 2013. 6 Associate Judge Osborne became a High Court Judge in 2018.

information that may have been contained on the external hard drive of the Laptop that

was not relevant or that was privileged.7

[17] Associate Judge Osborne was in no doubt that the physical property sought by

Mr Walker was his property as liquidator. In respect of the personal information

contained on the hard drive, Associate Judge Osborne said:

[48] At some point in the history of his involvement with the various

Henderson companies and his control of his personal affairs, Mr Henderson,

(or his employees) chose to carry on the hard drive of the laptop information

relating to the affairs of a number of different legal persons. Once that

decision and practice was adopted, there would be an intermingling to be dealt

with in the event that any of those persons was subsequently placed either in

bankruptcy or in liquidation. The legal right to access of documents relating

to the affairs of those persons would pass to their administrator. That is

precisely what has happened in this case with the liquidation of Property

Ventures and a number of other companies in the group.

[49] The real issue of substance in this case is not whether the liquidator of

Property Ventures and other companies in the group should have access to

documents related to the affairs of Property Ventures and the group. Rather,

the issue is how that should be done assuming that some of the documents

held on the hard drives may arguably relate solely to other persons.

[18] Associate Judge Osborne directed the police to deliver to Mr Walker the

external hard drive and flash drives on which were stored electronic data extracted

from the Laptop. He directed Mr Walker to complete a list categorising the electronic

documents as follows:

(i) Documents required to be disclosed by the liquidator in relation to

existing High Court proceedings;

(ii) Documents which relate to the affairs of Property Ventures Ltd or any

related company of which the liquidator is liquidator, other than

documents which are disclosed under paragraph (b)(i) above;

(iii) Documents which do not fall into either of the preceding ((i) or (ii))

categories.

[19] The Tape Drive was a backup of PVL’s server and included a backup of the

Laptop. The Laptop (and therefore the Tape Drive) contained documents of a private

nature (the Private Documents). They included personal emails between

Mr Henderson and his wife; personal emails between Mr Henderson and his friends

7 At [44].

(including Mr Hyndman); personal photographs; legally privileged material; and

emails unrelated to the affairs of the companies of which Mr Walker was liquidator.

[20] Mr Walker accepted the Private Documents were private.8

[21] Between April 2011 and February 2016, Mr Walker made various distributions

of Mr Henderson’s private information to the IRD, the office of the Official Assignee,

the police, lawyers, and three distributions to private individuals.

Alleged distributions of Mr Hyndman’s private information

[22] Following Mr Henderson’s bankruptcy, Mr Hyndman became director of a

number of companies of which Mr Henderson could no longer be a director. On

9 February 2012, Mr Walker and John Scutter were, between them, appointed

liquidators of 15 companies in respect of which Mr Hyndman was a director.

Mr Hyndman believes he was caught in the cross-fire of the enmity between

Mr Walker and Mr Henderson and that Mr Walker provided his private information to

outsiders.

[23] The breaches of privacy that Mr Hyndman considers most egregious are

Mr Walker’s alleged provisions of personal information to Garry Holden. Mr Holden

was the partner of Mr Hyndman’s former de facto partner. He had no interest in PVL

or any of the group companies but intensely disliked Mr Hyndman (and by association

Mr Henderson).

[24] Mr Holden had harassed Mr Hyndman for around three years, mainly by

abusive text and email messages. By 24 February 2012, Mr Walker was on notice that

Mr Hyndman was being harassed by Mr Holden.

[25] In 2014, Mr Hyndman laid a criminal complaint with the police and

successfully applied for a three-year restraining order against Mr Holden under the

8 Mr Walker questioned whether legal privilege attached to some of them, contending that the

privilege belonged to him as liquidator of the various companies. That proposition was not

pursued by his counsel.

Harassment Act 1997. Mr Holden was interviewed by the police and admitted sending

the texts and emails.

[26] When interviewed by the police as a result of Mr Hyndman’s complaint of

criminal harassment in February 2014, Mr Holden admitted being good friends with

Mr Walker, saying they got on like a house on fire.

[27] Mr Hyndman maintains that Mr Walker passed his private information to

Mr Holden. Mr Hyndman claims that, from 21 July 2011, Mr Holden sent a series of

text messages to him referring to information that could only have come from the

Laptop. He claims Mr Walker either provided this information directly to Mr Holden

or to Mr Thorne (who had a gripe against Mr Henderson), who in turn sent it on to

Mr Holden.

May 2011

[28] Mr Hyndman alleges he received a text message from Mr Holden on 9 May

2011 that said:

Robert Walker, what a good man, he on the case of Hynd and Hend, everyone

assisting. How sweet it is!

[29] Mr Fowler QC, for Mr Walker, submitted that, at its highest, this alleged9 text

message would suggest Mr Walker had made Mr Holden aware that he was pursuing

both Mr Hyndman and Mr Henderson.

[30] Given Mr Walker had been appointed liquidator of PVL and other PVL

companies in December 2010, Mr Fowler submitted that Mr Holden could have

obtained this information from any other source. There was nothing in the text

message that could be considered inherently confidential or private and, as Mr Moss

for Mr Hyndman acknowledged, it was contextual only.

9 While this text message was referred to in Mr Hyndman’s second amended statement of claim, it

was not included in evidence. Nor did Mr Walker concede this fact. Ultimately, however, nothing

turns on this text message.

September 2011

[31] On 22 September 2011, Mr Hyndman received a series of text messages from

Mr Holden saying:

P.s. Wayne is working for me!

He even got me copies emails between you and H. Back then you stated I was

pot smoker and pokie addict, great emails. Your number now blocked.

[32] It does not appear to be in dispute that the reference to Wayne must be to

Wayne Idour, the private investigator who recorded the telephone call he held with

Mr Walker. Mr Hyndman says the email Mr Holden refers to is a personal email

between him and Mr Henderson on the Laptop, which (jokingly) insinuated that

Mr Holden smoked cannabis and was addicted to gambling. The context for the

exchange between Mr Henderson and Mr Hyndman was an aggressive and abusive

email Mr Holden sent Mr Hyndman, which Mr Hyndman forwarded to Mr Henderson.

Mr Henderson then replied to Mr Holden on 26 July 2010 with a tongue-in-cheek draft

message for Mr Hyndman to send to Mr Holden – which Mr Hyndman says he never

did. All he did with it was forward it to the lawyer acting for him at the time.

[33] In this email, Mr Henderson drafted the comment:

Given you are now driving buses, I am left to assume the pokies and the dope

cleaned out your share …

[34] It is difficult to ignore the remarkable coincidence between the language

employed by Mr Henderson in the draft email and Mr Holden’s text to Mr Hyndman.

Mr Walker categorically denied forwarding this email to Mr Holden or Mr Thorne.

He said, once he understood Mr Holden’s behaviour, he wanted nothing more to do

with him. It is fair to say, however, Mr Walker was somewhat more equivocal as to

whether his agent, Mr Eathorne,10 might have forwarded the email to Mr Thorne and

he could not categorically refute the proposition that Mr Thorne forwarded that email

to Mr Holden.

10 Mr Eathorne was either an employee of, or contractor to, Mr Walker.

[35] Mr Fowler put to Mr Hyndman in cross-examination that the reference to

“Wayne” was to Wayne Idour, the private investigator hired by Mr Henderson, and

that it was Mr Idour who provided the email to Mr Holden. Unfortunately, Mr Idour

has since died and was unable to give evidence. Mr Hyndman strongly refuted the

suggestion that Mr Idour was working for Mr Holden. Mr Hyndman gave evidence

he checked this with Mr Idour, who denied having ever worked for Mr Holden (or

Mr Walker).

[36] In Mr Fowler’s submission, it was implausible to suggest that Mr Holden and

Mr Walker conspired with each other to falsely attribute the source of the email to

Mr Idour. However, I do not understand Mr Hyndman to have been suggesting any

sort of collusion. When Mr Fowler put this proposition to Mr Hyndman in

cross-examination, Mr Hyndman rejected it. Nor is it necessary to find collusion to

reject the proposition that Mr Idour was the person who provided Mr Holden with the

email. While Mr Fowler spoke of Mr Holden “covering for Mr Walker”, Mr Holden

may have had any number of reasons for lying to Mr Hyndman. It is unnecessary to

speculate on his motivations.

[37] A further difficulty for the theory Mr Idour provided the email to Mr Holden

is the question of how Mr Idour could have come into possession of the email.

Mr Hyndman’s evidence was that he only provided the email to Mr Henderson and

his lawyer. Mr Walker then came into possession of Mr Henderson’s copy.

[38] On balance, I am satisfied Mr Holden indirectly obtained the email from

Mr Walker, likely by Mr Eathorne providing it to Mr Thorne or to Mr Holden directly,

a possibility not ruled out by Mr Walker’s evidence. That version of events is more

plausible than Mr Idour providing it to Mr Holden, which is inconsistent with

Mr Hyndman’s evidence. I accept that, if indeed the reference to “Wayne” does refer

to Mr Idour, then Mr Holden’s text messages were not entirely truthful, for whatever

reason.

February 2012

[39] At 1.20 pm on 20 February 2012, Mr Hyndman received a text message from

Mr Holden that said:

Knock knock. Whos there ?. Robert. Robert who ?. Robert Walker, and he

has you in his sights.

[40] At 3.02 pm on the same day, Mr Scutter emailed a letter to Mr Hyndman

requesting disclosure of various information and documents in connection with the

liquidations of companies in respect of which he was a director.

[41] This was the first communication Mr Walker or Mr Scutter sent to

Mr Hyndman. Mr Moss posed the interesting question of how Mr Holden could have

known Mr Walker had Mr Hyndman “in his sights” other than by Mr Walker telling

Mr Holden of that (or alternatively telling Mr Thorne, who passed that information on

to Mr Holden).

[42] Mr Walker denies telling Mr Holden of Mr Scutter’s appointment and says any

concerns about timing are ultimately irrelevant because the companies in the PVL

group were inevitably going to be placed into liquidation.

[43] I accept there was nothing private or confidential in Mr Scutter’s appointment.

This is another example of context.

May 2012

[44] Mr Hyndman refers to an email from Mr Holden, under his pseudonym, to

Mr Henderson on 5 May 2012 when Mr Holden told Mr Henderson that he understood

Mr Henderson had called Mr Walker “a crook” recently. Three days earlier,

Mr Henderson had emailed Mr Walker saying, amongst other things, that he was “a

crook”. As I have observed in relation to Mr Henderson’s claim, the use of that same

language in such close proximity in time, is nothing short of a remarkable coincidence.

It is impossible to disregard an inference that Mr Henderson’s email was passed on

either directly or indirectly to Mr Holden. There was no impact on Mr Hyndman,

however, and, again, this email was referred to for context.

December 2012

[45] On 21 December 2012, a decision in Gibbston Downs Wines Ltd v Property

Ventures Ltd (in liq and in rec) was released by the Registry to the lawyers for the

parties.11 It was favourable to Mr Walker and included criticisms of Mr Henderson.

[46] On 27 December 2012, and before the decision had been released publicly or

uploaded to legal databases, Mr Hyndman received a text message from Mr Holden,

who was not involved in the proceeding, which said:

Copy of Osbournes judgement doing the rounds at The Monday Room. What

a hoot. He can spot crooks when he sees them.

[47] On 29 December 2012, Mr Hyndman received another text message from

Mr Holden, which said:

Yehaah, another win by Robert Walker over the crooks.

[48] Mr Walker denies supplying a copy of the judgment to Mr Holden and/or

Mr Thorne.

[49] There is nothing private or confidential in a public court judgment but, again,

this email is relevant context. In saying that, there was nothing to stop Mr Walker

distributing that judgment amongst his contacts, whether or not he did so as a means

to celebrate his success.

January 2013

[50] On 13 January 2013, Mr Hyndman received another text message from

Mr Holden, which said:

Ho ho, you start email stating you owner caryard. Geez that says enough.

Frank and honest?. Maybe then you should tell the buyers you send to bodgey

finance mob, you get a 500 kickback!. Thank god the heroes of everyone,

Walker, Van Beynen and a line up of ex cultists exposing you and your crook

mate. You have no idea who sees your and the crooks emails, 100s people.

Oh!, telling a male he looking good and so does he truck has huge homo

connotations!

(emphasis added)

11 Gibbston Downs Wines Ltd v Property Ventures Ltd (in liq and in rec) [2012] NZHC 3592.

[51] While Mr Hyndman says this is indicative of the fact that a number of people

have viewed his private emails, in Mr Fowler’s submission, the text message should

not be read that way. He referred to the fact the text message discusses an article by

journalist Martin van Beynen and submitted it was not evident what the message had

to do with Mr Walker or his alleged involvement in the disclosure of Mr Hyndman’s

personal information.

[52] In Mr Moss’ submission, the significance of the message is that it can be

inferred the emails referred to are between Mr Hyndman and Mr Henderson. In this

context he referred to the text message from Mr Holden on 22 September 2011

referring to emails between Mr Hyndman and Mr Henderson.

An inference of further distributions

[53] Another incident relevant to overall context was a message Mr Holden left on

the answering machine of a relative of Mr Hyndman’s ex-partner on 11 November

2011. Mr Holden said, “I’m working with Robert Walker” and made a reference to

Mr Hyndman sitting on a “red chair” and said he had tapes “from all the meetings”.

There was evidence that, when Mr Henderson and his friends met, they would sit in

red chairs. Mr Moss accepted that, while information about red chairs was not private,

this message was relevant to an assessment of whether Mr Walker had disclosed

information that would likely have been contained on the Laptop and Tape Drive.

[54] It is also relevant to an assessment of Mr Walker’s evidence that, once he

discovered Mr Holden was “toxic”, he distanced himself from Mr Holden.

[55] Mr Hyndman is only aware (because Mr Holden has used the information to

harass him) of the examples discussed above where he says Mr Walker disclosed

private information to Mr Holden.

[56] Mr Hyndman suspects that the examples are not the only instances of such

disclosures of private information to Mr Holden, or to other people, such as

Mr Thorne, because:

(a) Mr Walker stated in his conversation with Mr Idour on 11 June 2011

that he would provide any personal information off the Laptop to

anybody who wanted it.

(b) In the same conversation, Mr Walker made it clear that he did not care

about the Privacy Act, was not going to spend money getting a legal

opinion about the Privacy Act, and that people like Mr Henderson have

no rights.

(c) In the same conversation, Mr Walker said that he was sick of laws

applying to him (and not Mr Henderson), and that he would go beyond

the law because Mr Henderson had no means of enforcing anything

against him.

(d) Mr Walker breached his undertaking to the Court (noted at [16] above)

by providing information that was not relevant, including

Mr Hyndman’s personal information.

(e) Mr Holden’s text messages suggest that Mr Walker showed him

Mr Hyndman’s emails and say that Mr Hyndman has no idea who sees

them.

[57] Mr Hyndman says Mr Walker continued to correspond with Mr Holden until

(at least) either July 2013 or February 2014, despite being put on notice by the email

dated 24 February 2012 that Mr Holden had been harassing Mr Hyndman for two

years (at that point).

[58] Mr Holden confirmed in his police interview on 11 February 2014 that he had

heard from Mr Walker just “a couple of days ago”.

[59] At a New Zealand Institute of Chartered Accountants disciplinary hearing on

16 April 2014, Mr Walker told Mr Hyndman that he had stopped communicating with

Mr Holden, and by his email dated 15 May 2014, said the last email he sent Mr Holden

was on 30 July 2013 and he had not communicated with Mr Holden for nearly a year

(which contradicted what Mr Holden told the police).

Disclosure of private information to Grahame Thorne

[60] Mr Hyndman says that, on 8 July 2013, an email from a false email address

was sent by a friend of Mr Thorne’s named Jo-Anne Cole, or by Mr Thorne himself,

to Mr Hyndman. The email insinuated that Mr Hyndman had recently entered into an

unlawful “title transfer” and that Mr Walker had “caught scent of it and is hot on the

trail”.

[61] As Mr Fowler pointed out, the land purchase occurred in 2013, whereas the

information at issue in these proceedings was sourced from the Laptop and Tape Drive

retrieved as a result of the Warrants in April 2011. There was therefore no link between

any information Ms Cole might have obtained (whether via Mr Thorne or otherwise)

and Mr Walker.

[62] Mr Hyndman suspects there are further examples of which he is not aware of

disclosures of his private information by Mr Walker to Mr Thorne. He notes that

Mr Walker told Mr Henderson in a telephone conversation on 13 January 2013 that he

had provided information to Mr Thorne and refers to the emails dating back to

February 2011 between Mr Walker and Mr Thorne. Mr Hyndman says Mr Thorne,

either personally or through Ms Cole, used the information to engage with and harass

him. Mr Hyndman’s statement of claim pleads that, without the benefit of discovery,

those issues remained unknown. Discovery has now, of course, taken place and there

is no evidence of any further disclosures.

Provision of flash drives including all emails from the Laptop to Mr Slevin on 14 June

2011 and 26 August 2011

[63] On 14 June 2011, Mr Slevin, a solicitor working for the Insolvency and Trustee

Service, requested that Mr Walker provide a clone of the Laptop “pursuant to s 171 of

the Insolvency Act 2006”. Mr Walker was unable to provide a clone and instead

provided a flash drive. The flash drive contained emails and some voice recordings.

[64] Mr Slevin was unable to search the flash drive so, in mid-August 2011, he

asked Mr Eathorne to provide emails in searchable form. On 26 August 2011,

Mr Eathorne provided a second flash drive. Given the conclusions Mr Slevin reached

after having viewed the emails, on 31 October 2011 he forwarded the flash drive to

Mr Wolmarans, Acting Investigations Manager of the National Enforcement Unit.

Mr Wolmarans was unable to search the flash drive, so Mr Slevin provided him with

copies of the relevant emails.

[65] By her judgment dated 30 March 2017, Hinton J considered whether

Mr Slevin’s request constituted an unreasonable search and seizure for the purposes

of s 21 of the New Zealand Bill of Rights Act.12 She noted that, during the course of

locating relevant emails, Mr Slevin also viewed irrelevant emails, including personal

communications. Hinton J held the s 171 request was unlawful because it was a

blanket demand for all documents even though s 171 does not extend to personal

documents that are clearly irrelevant to a bankruptcy.

[66] Mr Hyndman says some of his emails to and from Mr Henderson would have

been included on the flash drives. The distributions of the flash drives to Mr Slevin

are mentioned as background in Mr Hyndman’s statement of claim, although they are

not clearly pleaded as particulars for the claims in breach of confidence and breach of

privacy. Nevertheless, the parties referred to them in argument, and I have considered

them.

Breach of privacy in CIV-2012-409-2486

[67] Mr Hyndman also alleges a breach of privacy in relation to his suspicion that

private emails between him and Mr Henderson were disclosed by way of discovery in

other court proceedings where Mr Walker was a party as liquidator. This occurred in

February 2016. In Walker v Forbes, Lang J held that Mr Walker was in contempt in

respect of this discovery.13 He accepted, however, this was inadvertent because

Mr Walker had passed responsibility for discovery to his lawyers. Lang J also

12 Henderson v Attorney-General [2017] NZHC 606. 13 Walker v Forbes [2017] NZHC 1090.

considered that all reasonably practicable steps had been taken to limit any damage

following the inadvertent discovery.

[68] Mr Hyndman is unsure whether any of his private information was included in

that discovery.

Mr Hyndman’s claim

[69] Mr Hyndman believes that Mr Walker distributed a mix of private and

company information to third parties who had no right to the information and, given

they held hostility towards both Mr Hyndman and Mr Henderson, those third parties

used the information to cause Mr Hyndman significant stress, humiliation and mental

illness. Mr Hyndman says his mental health continues to suffer because he does not

know who had access to, and potentially continues to hold, his private information.

He says he suffers from depression and insomnia. No medical evidence was provided.

[70] Whether Mr Walker knew the information would be used in the manner in

which Mr Hyndman claims it was, matters not. The issue is whether Mr Walker

disclosed Mr Hyndman’s private information in breach of the law.

[71] In the related claim by Mr Henderson, I discussed my conclusion that

Mr Walker had no right to deal with the information on the Laptop (in particular) until

February 2012 when the stay of the PVL liquidation was lifted. The disclosure of

Mr Henderson’s private information on the Laptop included communications with

Mr Hyndman.

[72] It is reasonably clear to me that Mr Hyndman was caught in the fallout of

Mr Walker’s antipathy towards Mr Henderson. I am in no doubt that Mr Walker

passed information to Mr Thorne and, from the various communications referred to

above, it is reasonable to conclude that, for a time anyway, he also passed information

to Mr Holden.

[73] I now turn to consider Mr Hyndman’s claims in relation to his various causes

of action.

Breach of duty of confidentiality

[74] In Coco v AN Clarke (Engineers) Ltd, Megarry J set out the three elements

required to establish a breach of confidence:14

(a) the information has the necessary quality of confidence about it;

(b) the information has been imparted in circumstances importing an

obligation of confidence; and

(c) there has been an unauthorised use of that information.

Does the information have the necessary quality of confidence about it?

[75] Mr Walker claims that none of his disclosures in relation to Mr Hyndman

carried with them the necessary quality of confidence.

[76] While it may be that many of the specific disclosures on which Mr Hyndman

relies cannot be considered in and of themselves to have the necessary quality of

confidence, they do build a picture of Mr Walker disclosing emails that included

communications either to or from Mr Hyndman. The email joking that Mr Holden

was a pot smoker and pokie addict, drafted by Mr Henderson on 26 July 2010, does,

in my assessment, have the necessary quality of confidence. That email was clearly a

private communication between close friends.

[77] Mr Holden’s text message of 13 January 2013, telling Mr Hyndman he had no

idea who saw the emails between him and Mr Henderson, is troubling to say the least.

While it may be Mr Holden was simply aware that Mr Walker had seen thousands of

Mr Henderson’s emails (which was public information as a result of the NBR article),

it was not, as far as I can see, in the public domain that Mr Henderson’s emails

included emails to and from Mr Hyndman.

[78] I am prepared to accept that Mr Walker was primarily focused on

Mr Henderson’s business dealings, but he clearly took some pleasure in sharing

14 Coco v AN Clarke (Engineers) Ltd [1969] RPC 41 (Ch) at 47.

private information to which he had access with those he knew were hostile to both

Mr Henderson and Mr Hyndman. I find it is more likely than not that some of the

emails shared by Mr Walker had the necessary quality of confidence because, for

instance, they involved private communications between Mr Henderson and

Mr Hyndman as close friends. As Mr Moss submitted, there was clearly a “chain of

communication” between Mr Walker and adversaries of Mr Hyndman and

Mr Henderson. In the absence of concrete evidence, however, and in light of

Mr Walker’s primary focus on Mr Henderson’s business dealings, I find the number

of such emails was likely to be minimal.

[79] I am satisfied the other specific disclosures referred to by Mr Hyndman –

including the text messages on 9 May 2011, 20 February 2012, 27 and 29 December

2012 and 13 January 2013 – involved matters already in the public domain, which

cannot attract the necessary quality of confidence.15

[80] Counsel also drew my attention to two emails contained on the Laptop that

have the necessary quality of confidence. The first was an email in which

Mr Hyndman forwarded to Mr Henderson an abusive email from Mr Holden, which

included allegations of impropriety and discussed Mr Hyndman’s previous

relationship with his ex-partner. This was clearly a private communication between

close friends and included very personal information. The second was a privileged

email concerning PVL sent to both Mr Hyndman and Mr Henderson by their lawyers.

There can be no doubt this privileged communication had the necessary quality of

confidence.

Was the information imparted in circumstances importing an obligation of

confidence?

[81] A detailed discussion of the principles relating to circumstances importing an

obligation of confidence can be found in my decision on Mr Henderson’s claim.16 I

briefly summarise those principles here. Whether information is imparted in

circumstances importing an obligation of confidence involves a factual assessment of

15 Saltman Engineering Co Ltd v Campbell Engineering Co Ltd [1963] 3 All ER 413 (CA) at 415

per Lord Greene MR. 16 Henderson v Walker, above n 1, at [144]–[160] and [170]–[183].

whether the circumstances are such that a reasonable individual, standing in the shoes

of the recipient of the information, would have realised that, on reasonable grounds,

the information was being given in confidence.17

[82] Following the Court of Appeal’s decision in Hosking v Runting establishing a

separate tort of invasion of privacy,18 New Zealand courts should be cautious about

applying English authorities on breach of confidence, in particular Lord Goff’s

comment in the Spycatcher case that an individual who innocently comes into

possession of “obviously confidential” information could be held liable if he or she

had notice of its confidentiality.19

[83] In New Zealand, the basis for judicial intervention is that a person has received

information in confidence. In most cases, the focus is on the relationship between the

confider and the confidant in which the information was disclosed. Mere notice that

information has the necessary quality of confidence will not suffice.

[84] In relation to Mr Henderson, I was satisfied that Mr Walker received the

information contained on the Laptop in circumstances importing an obligation of

confidence. Mr Walker either acquired the Laptop as an agent for the police who

acquired it pursuant to the Warrant, or under an implied exercise of his power as

liquidator to obtain documents under s 261 of the Companies Act. Either way, the

principles established by Marcel v Commission of Police of the Metropolis suggest an

individual or entity who acquires documents by compulsion does so subject to an

obligation of confidence.20 There is nothing in pt 16 of the Companies Act to preclude

a liquidator from owing an obligation of confidence to a director or former director of

a company in liquidation.21

17 Coco v AN Clarke (Engineers) Ltd, above n 14, at 48. 18 Hosking v Runting [2005] 1 NZLR 1 (CA). 19 Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 (HL) (the Spycatcher case)

at 281. 20 Marcel v Commission of Police of the Metropolis [1992] Ch 225 (CA) at 261 per Nolan LJ and

262 per Sir Christopher Slade. See also The Stepping Stone Nursery Ltd v Attorney-General

[2002] 3 NZLR 414 at [27]–[28]. 21 Some general support for this proposition can be derived from the Court of Appeal’s decision in

Finnigan v Ellis [2017] NZCA 488, [2018] 2 NZLR 123.

[85] This does not, however, assist Mr Hyndman. Mr Walker had a direct

relationship of confidence with Mr Henderson because it was Mr Henderson’s

documents that were obtained. Although Mr Hyndman clearly had an interest in the

information contained in some of those documents, the documents were not his. This

is demonstrated by the fact that, had Mr Walker exercised his power under s 261 of

the Companies Act, it would have been by notice to Mr Henderson, not Mr Hyndman.

[86] Equally, Mr Hyndman cannot benefit from the relationship of confidence

between Mr Walker and Mr Henderson because he has no standing to sue for a breach

of confidence in relation to Mr Henderson. As the Court of Appeal of England and

Wales held in Fraser v Evans:22

… the party complaining must be the person who is entitled to the confidence

and to have it respected. He must be a person to whom the duty of good faith

is owed.

The fact some of the confidential information on the Laptop also related to

Mr Hyndman does not change this. To conclude otherwise would allow Mr Hyndman

to, in effect, circumvent the requirement to demonstrate a relationship of confidence.

[87] Similarly, Mr Walker was not a third-party recipient of information obtained in

breach of a different relationship of confidence involving Mr Hyndman.23

[88] Nor does Mr Hyndman fall into the categories of cases where an obligation of

confidence can arise in the absence of any relationship of confidence. Mr Hyndman

has not alleged Mr Walker obtained the information surreptitiously or by other

improper means.24 Even though the Warrant was found to be unlawful, and Mr Walker

undoubtedly played some role in police obtaining the Warrant, Mr Walker was not

legally responsible for the actions of the police. This is also not a case in which

“obviously confidential” information has come in Mr Walker’s possession with his

22 Fraser v Evans [1969] 1 QB 349 at 361, [1969] 1 All ER 8 (CA) per Lord Denning MR. 23 Compare Hunt v A [2007] NZCA 332, [2008] 1 NZLR 368 at [92]–[94]. 24 Compare Lord Ashburton v Pape [1913] 2 Ch 469 at 475; Exchange Telegraph Co Ltd v Gregory

& Co [1896] 1 QB 147 (CA); Distillers Co (Biochemicals) Ltd v Times Newspapers Ltd [1975]

QB 613, [1975] 1 All ER 41 (QB); ITC Film Distributors Ltd v Video Exchange Ltd [1982] Ch 431,

[1982] 2 All ER 241 (Ch); Franklin v Giddins [1978] Qd R 72; and Deta Nominees Pty Ltd v

Viscount Plastics Products Pty Ltd [1979] VR 167 at 191.

notice of its confidential nature.25 There is no evidence demonstrating Mr Walker had

seen the two confidential emails that were provided to Mr Slevin on the flash drives,

and the email of 26 July 2010 joking that Mr Holden was a pot smoker and pokie

addict was not so obviously confidential that it should affect the conscience of

Mr Walker in the absence of a relationship of confidence, particularly when that email

was not marked as confidential.

[89] Accordingly, Mr Walker did not owe an obligation of confidence to

Mr Hyndman, so this cause of action cannot succeed.

Breach of privacy

[90] I accept the invasion of privacy tort is applicable to the disclosure of private

documents to a third party without authorisation for the reasons set out in my decision

concerning Mr Henderson’s claim.26 Although the Court of Appeal in Hosking v

Runting formulated the tort by reference to situations involving “widespread

publicity”, privacy is a multifaceted interest that requires protection in a variety of

different contexts.27 On a broader view of the tort, the plaintiff must establish:28

(a) a reasonable expectation of privacy in relation to information or affairs;

and

(b) qualifying conduct in relation to the information or affairs that would

be considered highly offensive to an objective reasonable person.

[91] A reasonable expectation of privacy exists in respect of information or affairs

that “a reasonable person, applying contemporary standards of morals and behaviours,

would understand to be meant to be unobserved.”29 Winkelmann J, as she then was,

and Professor Moreham have also suggested incorporating a normative element into

25 Compare Attorney-General v Guardian Newspapers Ltd (No 2), above n 19, at 281. 26 Henderson v Walker, above n 1, at [199]–[220]. 27 Hosking v Runting, above n 18, at [125] per Gault P and Blanchard J. 28 Compare Hosking v Runting, above n 18, at [117] per Gault P and Blanchard J; and C v Holland

[2012] NZHC 2155, [2012] NZHC 3 NZLR 672 at [94]. 29 Australian Broadcasting Corp v Lenah Game Meats Pty Ltd [2001] HCA 63, (2001) 208 CLR 199

at [42] per Gleeson CJ.

the reasonable expectations test to establish and protect “minimum standards needed

to secure the community and individual benefits of privacy”.30

[92] The requirement for the conduct to be highly offensive ensures the tort is

reserved for invasions of privacy that are “truly humiliating and distressful or

otherwise harmful to the individual concerned”.31 What is highly offensive is assessed

from the perspective of a reasonable person in the position of the plaintiff as opposed

to a reasonable bystander.32 The focus is on whether the conduct of the defendant is

offensive, not just whether the information itself is offensive in nature. The nature of

the information is one consideration, but other important considerations include the

circumstances and extent of any disclosure and the nature of the relationship between

the parties.

[93] Finally, the invasion of privacy tort must contain a notice requirement of some

sort, although it is not at present necessary to decide whether the requisite standard is

knowledge, recklessness or negligence.33

Did Mr Hyndman have a reasonable expectation of privacy in relation to his

information on the Laptop?

[94] I accept the 26 July 2010 email joking that Mr Holden was a pot smoker and

pokie addict, and others like it, were clearly sent on the basis they were intended for

Mr Hyndman’s eyes only. This was a private communication between close friends.

I do not accept Mr Fowler’s submission that it was Mr Henderson as the sender of the

emails who had the expectation of privacy rather than Mr Hyndman. Mr Hyndman as

receiver clearly also had an expectation of privacy.

[95] For the reasons outlined at [78], I would be willing to find on the balance of

probabilities that Mr Walker disclosed other private communications of this kind as

30 Helen Winkelmann, Judge of the Court of Appeal of New Zealand Sir Bruce Slane Memorial

Lecture (Victoria University of Wellington, 30 October 2018) at 19; and Nicole Moreham

“Unpacking the reasonable expectation of privacy test” (2018) 134 LQR 651. 31 Hosking v Runting, above n 18, at [126] per Gault P and Blanchard J. 32 P v D [2000] 2 NZLR 591 (HC) at [39]. 33 Stephen Todd (ed) The Law of Torts in New Zealand (online ed, Thomson Reuters) at at [17.5.04]

(footnote omitted).

part of the “chain of communication” between him and adversaries of Mr Hyndman

and Mr Henderson.

[96] I am satisfied the other specific disclosures referred to by Mr Hyndman –

including the text messages on 9 May 2011, 20 February 2012, 27 and 29 December

2012 and 13 January 2013 – involved matters of public knowledge in respect of which

Mr Hyndman could not have a reasonable expectation of privacy. In fact, many of

those text messages referred to information that did not come from the Laptop and did

not even concern Mr Hyndman.

[97] I also accept Mr Hyndman has a reasonable expectation of privacy in relation

to the abusive email from Mr Holden that he forwarded to Mr Henderson. This was a

private communication between close friends and included very personal information.

Similarly, Mr Hyndman had a reasonable expectation of privacy in relation to the

privileged email concerning PVL.

Did Mr Walker have notice that the information was private?

[98] Mr Walker knew there was personal information on the Laptop from as early

as 27 May 2011. I have already found the disclosure of the 26 July 2010 email joking

that Mr Holden was a pot smoker and pokie addict (and any similar disclosures) likely

occurred after 27 May 2011, so no issue arises of Mr Walker lacking notice the

information was private. The provision of the flash drives to Mr Slevin also occurred

after 27 May 2011 (on 14 June 2011 and 26 August 2011).

Would disclosure be considered highly offensive to a reasonable person?

[99] There is, however, no realistic argument that disclosure of emails of the kind

sent on 26 July 2010 would be considered highly offensive by a reasonable person.

There is nothing embarrassing or compromising, or even particularly personal, in the

26 July 2010 email. There is also no evidence to suggest any other documents

disclosed by Mr Walker to Mr Holden or Mr Thorne were more personal in nature.

Furthermore, the emails were disclosed to a very limited audience of two or three

private individuals, albeit individuals who held grudges against Mr Hyndman and

Mr Henderson.

[100] Equally, the provision of the flash drives to Mr Slevin would not be considered

highly offensive from the perspective of a reasonable person in Mr Hyndman’s shoes.

Unlike Mr Henderson, Mr Hyndman had a limited amount of private information on

the Laptop.

[101] There is also no evidence suggesting any of Mr Hyndman’s private emails were

included in the discovery provided in CIV-2012-409-2486.

[102] In those circumstances, Mr Hyndman’s claim for invasion of privacy cannot

succeed and it is dismissed.

Misfeasance in public office

[103] The elements for the tort of misfeasance in public office are:34

(a) the plaintiff must have standing to sue;

(b) the defendant must be a public officer;

(c) the defendant must have acted or omitted to act in purported exercise

of his or her public office unlawfully either intentionally, or with

reckless indifference as to whether he or she was acting beyond the

limits of his or her public office;

(d) the defendant must have acted or omitted to act either;

(i) with malice towards the plaintiff, that is, with intention to harm;

(ii) knowing his conduct was likely to harm the plaintiff, or people

in the general position of the plaintiff; or

(iii) with reckless indifference as to whether the plaintiff would be

harmed; and

34 Currie v Clayton [2014] NZCA 511, [2015] 2 NZLR 195 at [40].

(e) the plaintiff must actually have suffered loss and the defendant’s

actions must have caused the plaintiff’s claimed loss.

[104] The main hurdle for Mr Hyndman’s claim is whether Mr Walker, in his

capacity as a liquidator, is a public officer. I have addressed, and rejected, this

argument in some detail in the decision concerning Mr Henderson’s claim.35 I do not

propose to repeat that analysis in full here.

[105] In short, I am satisfied that, although the role of liquidator is prescribed by the

Companies Act and liquidators must comply with certain statutory duties, the position

is fundamentally of a private nature and concerns the internal affairs of the company

in liquidation. This conclusion is supported by the scheme of pt 16 of the Companies

Act, including that a liquidator’s principal duty is essentially to carry out the

liquidation in a reasonable and efficient manner.36 Liquidators are practitioners who

charge fees for their work. Comparable English and Australian authorities suggest

public officials are limited to individuals who exercise executive or administrative

power, which liquidators do not.37

[106] Finally, misfeasance in public office is only actionable on proof of damage and

a claim for damages for humiliation, anxiety and distress will not suffice.38

Breach of statutory duty

[107] The elements of a claim for breach of statutory duty are:39

(a) a breach of statutory duty;

(b) a legislative intention that breach of the obligation should be a ground

of civil liability in relation to a class of persons to which the plaintiff

belongs;

35 See Henderson v Walker, above n 1, at [277]–[298]. 36 Companies Act 1993, s 253. 37 Society of Lloyd’s v Henderson [2007] EWCA Civ 930, [2008] 1 WLR 2255 at [23]; Three Rivers

District Council v Bank of England [2003] 2 AC 1 (HL) at 190 per Lord Steyn and 229 per Lord

Hobhouse; and Henderson v McCafferty [2000] QSC 410, [2002] 1 Qd R 170 at [33]–[35]. 38 Garrett v Attorney-General [1993] 3 NZLR 600 (HC) at 608. 39 Stephen Todd Laws of New Zealand Tort (online ed) at [87].

(c) injury or damage of a kind for which the law awards damages and

against which the statute was designed to give protection; and

(d) a causal nexus between the breach of the obligation and the injury or

damage.

[108] Again, I have addressed, and rejected, this cause of action in the decision

concerning Mr Henderson’s claim and I do not propose to repeat my analysis in full

in this decision.40 In brief, Mr Hyndman’s claim fails for two reasons. First, he cannot

point to any statutory duty that has been breached. The powers provided to liquidators

by pt 16 of the Companies Act are expressed in permissive terms and do not impose

an obligation on a liquidator to act in any particular way.41 Secondly, Parliament did

not intend breaches of pt 16 of the Companies Act to be a ground of civil liability

because pt 16 provides its own enforcement mechanism.42

Contempt

[109] As originally pleaded, the claim Mr Walker was in contempt of Court related

to discovery in associated proceedings brought by PVL, and Mr Walker as liquidator,

against former directors and auditors of the PVL group. This has already been

addressed by the High Court decision in Walker v Forbes, where the Court made a

finding of contempt but imposed no penalty in respect of the disclosure in the main

PVL proceedings.43

[110] Mr Hyndman still maintains Mr Walker was in contempt, however, in relation

to a further distribution by Mr Walker on 4 July 2013 of a flash drive containing some

of the contents of the Laptop and Tape Drive to Ron McQuilter of Paragon

New Zealand, a private investigator acting on behalf of the Official Assignee’s office.

Less than a month earlier, on 11 June 2013, Associate Judge Osborne had directed that

Mr Walker was entitled to the contents of the Laptop and Tape Drive, subject to

conditions as set out above at [18] above. In summary, Mr Walker was to complete an

40 See Henderson v Walker, above n 1, at [299]–[305]. 41 Mr Hyndman relied upon sections 253, 260 and 261 and schedule 6 of the Companies Act 1993. 42 See Companies Act 1993, s 286. 43 Walker v Forbes, above n 13.

analysis of the electronic data delivered to him and file and serve a memorandum

listing the documents into various categories of relevance. Following receipt of that

memorandum, Mr Henderson was entitled to request the return or deletion of

irrelevant documents. This order was made on the basis of an undertaking given by

Mr Walker that he would not disclose information that was not relevant or was

privileged.

[111] Mr Hyndman’s interest in the matter presumably arises from the fact some of

his private information was also contained on the Laptop, although, as I have said,

there is no evidence suggesting any of Mr Hyndman’s personal documents were

provided in the discovery.

[112] In any event, I have addressed in full the reasons for dismissing this claim in

the judgment concerning Mr Henderson.44 In summary, Associate Judge Osborne’s

order did not require Mr Walker to delete or quarantine private documents until the

analysis had been completed and Mr Henderson had exercised his right to request that

course of action. The distribution to Mr McQuilter on 11 June 2013 preceded the

completion of that analysis, which occurred around 2 September 2013. In the

intervening period, the Court relied on Mr Walker’s undertaking not to disclose

irrelevant or privileged documents. Like Mr Henderson, Mr Hyndman pleads

contempt of Court on the basis of a breach of Associate Judge Osborne’s order and not

a breach of Mr Walker’s undertaking. For that reason, I decline to make the declaration

Mr Hyndman seeks.

Result

[113] Mr Hyndman’s causes of action in breach of confidence, invasion of privacy,

misfeasance in public office, breach of statutory duty, and contempt are dismissed.

44 Henderson v Walker, above n 1, at [306]–[315].

[114] Mr Walker is entitled to some measure of costs. If the parties are unable to

agree, submissions on Mr Walker’s behalf are to be filed and served within 28 days of

this decision, with any response 14 days thereafter.

Thomas J

Solicitors: Canterbury Legal, Christchurch for Plaintiff Luke Cunningham Clere, Wellington for Defendant