[11] Supporting affidavits should, however, be confined to the application which is before the Court. They may be necessary to explain why leave should be given. They should not, however, seek to introduce fresh evidence which could and should have been before the Associate Judge at the first hearing and this Court on the review. Heath J ultimately dismissed Mangatu’s application to adduce further evidence. His Honour concluded that there was no additional evidence proposed by Mangatu relevant to his decision which fell within the scope of the circumstances envisaged by Wylie J in Fresh Direct Ltd. Heath J dismissed the appeal as he was not satisfied it met the required threshold. His Honour acknowledged the preliminary determination by the arbitrator as to methodology used in determining damages, but found there was a factual vacuum which meant important facts remain to be determined, and that the appropriate forum for determination was by the arbitrator. Remaining facts for determination included whether Mangatu would have issued a notice to terminate at the same time, if it had proceeded on the footing that immediate termination was impossible, and what steps might have been taken in the period between any notice being given and its expiry, to determine whether, and if so, to what extent, Forest Holdings has suffered loss. Comment The outcome of the consequent arbitral decision remains to be seen, and may only become public if either party appeals the arbitrator’s award. However, Heath J’s referral of the damages quantum back to the arbitrator is to be welcomed as it demonstrates the Court’s support for arbitration and its reluctance to interfere in the arbitration process where parties have contractually agreed to pursue arbitration in the event of a dispute arising.
References [1] Forest Holdings Ltd v Mangatu Blocks Incorporation [2017] NZHC 448 at [5]. [2] Forest Holdings Ltd v Mangatu Blocks Incorporation [2017] NZHC 448 at [10]. [3] Forest Holdings Ltd v Mangatu Blocks Incorporation [2017] NZHC 448, at para [51]. [4] Forest Holdings Ltd v Mangatu Blocks Incorporation [2017] NZHC 1174 at [5]. [5] Cooper v Symes (No 2) (2001) 15 PRNZ 166 (HC). [6] Forest Holdings Ltd v Mangatu Blocks Incorporation [2017] NZHC 1174 at [11]. [7] Fresh Direct Ltd v JM Batten & Associates HC Auckland CIV-2008-404-4757, 3 December 2009, at [11].