Judge rejected challenge against privilege claimed over legal advice
In proceedings arising from a dispute among former partners of a law firm, the New Zealand Court of Appeal declined leave to appeal against two interlocutory judgments and saw no seriously arguable factual or legal question.
The first respondents in Kirkham v Winkelmann [2026] NZCA 269 were directors of a Taupō law firm and were in partnership with the first applicant. However, on 13 September 2019, the first respondents expelled the first applicant based on gross misconduct.
The first applicant referred the dispute to arbitration to challenge his expulsion’s validity. After the arbitrator found the expulsion valid, the first applicant did not appeal from the arbitration award.
The partnership dispute led to two High Court proceedings. First, in the substantive proceeding, the first respondents asked the court to transfer to them certain trust property retained by the first applicant and his trust company, the second applicant in this case.
Second, in the originating application, the first applicant sought to set aside the arbitral award for being “induced by fraud or corruption” under art 34 of schedule 1 of the Arbitration Act 1996.
In the substantive proceeding, the first applicant requested damages in a counterclaim that included the third respondent as a counterclaim defendant. The third respondent – a barrister who advised the first respondents in their partnership dispute and arbitration with the first applicant – was allegedly a party to “an unlawful conspiracy.”
Associate Judge Cogswell issued interlocutory judgments dated 24 June 2025 and 18 July 2025.
In the first interlocutory judgment, the associate judge granted the first respondents’ application to try the proceedings together, with evidence provided only once and without requiring supporting affidavits for their opposition to the originating application.
The second interlocutory judgment rejected the first applicant’s application assailing privilege asserted over specific communications, including legal advice that the first respondents received in 2019 and a 19 August 2019 letter marked “without prejudice.”
Before the High Court, the applicants applied for leave to appeal to the Court of Appeal under s 56(3) of the Senior Courts Act 2016. On 9 December 2025, the High Court dismissed this application.
The applicants applied for leave to appeal the two interlocutory judgments under s 56(5) of the Senior Courts Act. The second respondents were trustee companies associated with the first respondents.
The Court of Appeal of New Zealand ruled that the application for leave to appeal failed to meet the applicable high threshold. The appeal court saw no issue of general or public importance.
Finding no seriously arguable factual or legal question, the appeal court explained that:
The appeal court described the argument that rejecting the leave application would lead a reasonable observer to apprehend partiality as absolutely misconceived.
The appeal court pointed out that nothing prevented the applicants from raising the grounds in an appeal from the High Court’s substantive decision.
Finally, the appeal court ordered both applicants to pay the first and second respondents one set of costs and the third respondent another set of costs, plus the typical disbursements.
