Court orders documents to be released from legal fight between America’s Cup organisers

The High Court is poised to release more documents from a legal battle between the organisers of next year’s America’s Cup and former contractors Mayo & Calder.

In a minute released on Monday afternoon, Justice Matthew Palmer ordered that the Herald be issued redacted copies of papers filed by Mayo & Calder, an event management company previously engaged to help run the international sailing regatta.

Separately, it ordered that the Herald and BusinessDesk be given copies of an affidavit from Russell Green, which was filed in a bid to oppose the Herald being given the materials.

America’s Cup Event (ACE) is a largely taxpayer-funded entity run from within Team New Zealand’s base on the Auckland waterfront.

It is being given up to $40 million of taxpayer funding to run the international sailing regatta and preliminary races this summer.

ACE took legal action against Mayo & Calder around the time its boss, Grant Dalton (who is also chief executive of Team New Zealand), appears to have discovered that staff from the event management company were acting as whistleblowers in an investigation ordered by the Ministry of Business, Innovation and Employment (MBIE).

ACE went to the High Court in July to prevent the Herald from publishing details of allegations made against it, including a report by forensic accountancy firm Beattie Varley.

Later, a second report from Beattie Varley would find that the firm had not seen evidence ACE had breached the host venue agreement under which it was awarded the taxpayer funding. The report was critical of ACE’s governance.

Team New Zealand claimed the report represented “total vindication” but has refused repeated requests for interviews.

MBIE meanwhile welcomed the report, but its chief executive, Carolyn Tremain, has refused to say whether she believed the ministry had been deceived in relation to a $3 million fee Team New Zealand charged ACE for boat design. That dispute is headed for mediation.

The civil case sees ACE suing Mayo & Calder, alleging negligence, breach of the Fair Trading Act, breach of duties owed as an agent and breach of confidentiality. Mayo & Calder are counter using ACE for unlawful termination of an agreement on three grounds.

The civil case has already elicited key details of the inner workings of ACE, including the background of how ACE was conned into paying $2.8 million into a Hungarian bank account, wrongly believing it was paying a European television contractor.

Monday’s court minute does not spell out the details of the materials which are to be released.

Acting for ACE, David Bullock of Lee Salmon Long argued that the materials from Mayo & Calder “contains extensive particulars of heavily disputed allegations”, according to the High Court minute.

Bullock alleged that the Herald may be coordinating actions with Mayo & Calder which “give rise to the possibility that the court process might be being misused and it is engaged in critical reporting of the plaintiff, rather than fair and balanced reporting of the proceeding”.

Acting for Mayo & Calder, Julian Spring of Minter Ellison submitted that the court had already granted access to the court file and the applications should be approved to enable fair and balanced reporting of the proceeding.

Justice Palmer dismissed the suggestion that the court process was being misused and said he was not prepared to “second guess the Herald’s bona fides in reporting in a fair and balanced manner on these proceedings. The Herald is clearly seeking to report on issues which appear to be of public interest and will no doubt coordinate with whoever assists in that”.

While Justice Palmer was not convinced of the need to withhold certain parts of the defendants’ claims on the basis that the materials were disputed, releasing part of the documents – as well as parts of Greens’ affidavit – “would clearly be prejudicial to the plaintiff’s breach of confidentiality claim”.

Accordingly, Justice Palmer ordered that certain parts of both documents be redacted before release. The documents could be released as soon as today.

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