100 Investments Ltd v Walker
[2023] NZHC 3732
•15 December 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2019-404-1160
[2023] NZHC 3732
BETWEEN 100 INVESTMENTS LTD
First Plaintiff
Continued…
AND
ROBERT BRUCE WALKER
First Defendant
Continued…
Hearing: 12 and 13 December 2023 Appearances:
A R Barker KC and R B Hucker for the first to fourth plaintiffs in 1160 and the first to fourth defendants in 0274
D J Cooper KC for the first defendant in 1160 and the fifth defendant in 0274
D R Bigio KC and N R Frith for the third defendant in 1160 and the seventh defendant in 0274
W D Hofer and R J Reeves for the fourth defendant in 1160 and the eighth defendant in 0274
J Moss for the fifth to seventeenth defendants in 1160 and the first to thirteenth plaintiffs in 0274Judgment:
15 December 2023
JUDGMENT OF CAMPBELL J
(Applications for discovery, directions, and admissibility challenges)
This judgment was delivered by me on 15 December 2023 at 4.15 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
100 INVESTMENTS LTD v WALKER [2023] NZHC 3732 [15 December 2023]
CIV 2019-404-1160
FTG SECURITIES LTD
Second Plaintiff
RFD FINANCE LTD
Third PlaintiffTOMANOVICH HOLDINGS LTD
Fourth PlaintiffAND
JOHN MARSHALL SCUTTER
Second Defendant
LPF GROUP LTD
Third DefendantSPF NO 10 LTD (In Liquidation) Fourth Defendant
KEVIN JOHN WHITLEY as Liquidator of Property Ventures Ltd (In Liquidation)
Fifth Defendant
PROPERTY VENTURES LTD (In
Liquidation)
Sixth DefendantCASHEL VENTURES LTD (In
Receivership and Liquidation) Seventh Defendant
TAY VENTURES LTD (In Receivership and Liquidation)
Eighth Defendant
LIVINGSPACE PROPERTIES LTD
(In Liquidation) Ninth Defendant
TUAM VENTURES LTD (In Liquidation) Tenth Defendant
CASTLE STREET VENTURES LTD (In
Liquidation)Eleventh Defendant
Continued…
LICHFIELD VENTURES LTD (In
Liquidation)
Twelfth Defendant
ST ASAPH VENTURES LTD (In
Liquidation)
Thirteenth Defendant
BEECHNEST LTD (In Receivership and Liquidation)
Fourteenth Defendant
92 LICHFIELD LTD (In Receivership and Liquidation)
Fifteenth Defendant
MONTECRISTO CONSTRUCTION
COMPANY LTD (In Liquidation) Sixteenth Defendant
FIVE MILE HOLDINGS LTD (In
Liquidation) Seventeenth Defendant
CIV 2022-404-274
BETWEEN KEVIN JOHN WHITLEY
First Plaintiff
PROPERTY VENTURES LTD (In
Liquidation) Second Plaintiff
FIVE MILE HOLDINGS LTD (In
Liquidation) Third Plaintiff
CASHEL VENTURES LTD (In Liquidation and Receivership)
Fourth Plaintiff
TAY VENTURES LTD (In Liquidation and Receivership)
Fifth Plaintiff
LIVINGSPACE PROPERTIES LTD
(In Liquidation) Sixth Plaintiff
Continued….
AND BEECHNEST VENTURES LTD (In
Liquidation) Seventh Plaintiff
CASTLE STREET VENTURES LTD (In
Liquidation)
Eighth PlaintiffLICHFIELD VENTURES LTD (In
Liquidation) Ninth Plaintiff
92 LICHFIELD LTD (In Liquidation) Tenth Plaintiff
ST ASAPH VENTURES LIMITED (In
Liquidation)
Eleventh PlaintiffMONTECRISTO CONSTRUCTION
COMPANY LTD (In Liquidation) Twelfth Plaintiff
TUAM VENTURES LTD (In Liquidation) Thirteenth Plaintiff
100 INVESTMENTS LTD
First DefendantFTG SECURITIES LTD
Second DefendantRFD FINANCE LTD
Third DefendantTOMANOVICH HOLDINGS LTD
Fourth Defendant
ROBERT BRUCE WALKER
Fifth DefendantJOHN MARSHALL SCUTTER
Sixth DefendantLPF GROUP LTD
Seventh DefendantSPF NO 10 LTD (In Liquidation) Eighth Defendant
Introduction
[1] These two consolidated proceedings have been on foot for some time. One was commenced in 2019, the other in 2022. A four-week trial is scheduled to commence 26 February 2024. Earlier this week, I heard ten interlocutory matters:
(a)Three applications by defendants for further discovery from the plaintiffs.
(b)An application by Mr Cooper KC, litigation guardian for one of the defendants, for directions in relation to discovery.
(c)Three challenges by defendants to the admissibility of the evidence served by the plaintiffs.
(d)Two applications for security for costs.
(e)An application for leave to appeal an earlier security for costs decision.
[2]This judgment determines all but those in (d) and (e).
Background: Property Ventures Ltd, its collapse and successful proceedings
[3] The proceedings arise out of the liquidation of Property Ventures Ltd (PVL). PVL and some of its subsidiaries (the PVL subsidiaries) are defendants in one proceeding, CIV 2019-404-1160, and plaintiffs in the other, CIV 2022-404-274.
[4] PVL was placed into liquidation in July 2010. Robert Walker was appointed its liquidator. John Scutter was a joint liquidator with Mr Walker from 4 June 2013 until March 2018.
[5] On various dates between December 2010 and November 2012, the PVL subsidiaries were also placed into liquidation. Mr Walker was appointed sole liquidator of each.
[6] In November 2012, Mr Walker, PVL and one of the PVL subsidiaries filed a proceeding against PVL’s former directors, its auditors and its valuers. In April 2013, the rest of the PVL subsidiaries filed a separate proceeding. The two proceedings were consolidated in May 2014 (the PVL proceedings).
[7] The PVL proceedings alleged breaches of various duties said to have been owed to PVL and that the breaches contributed to its collapse, the collapse of the PVL group and the collapse of the PVL subsidiaries.
[8] To fund the PVL proceedings, Mr Walker, then the sole liquidator of PVL, entered into a litigation funding agreement with SPF No 10 Ltd (SPF). The litigation funding agreement was entered into between October 2012 and March 2013. SPF was a company incorporated for the purpose of advancing the PVL proceedings. It was a wholly-owned subsidiary of LPF Group Ltd (LPF).
[9] Between December 2015 and December 2017, PVL and the PVL subsidiaries reached settlements with all the defendants in the PVL proceedings. The defendants agreed to pay sums totalling $38,980,286.
Background: the current consolidated proceedings
[10] The plaintiffs in each of the current consolidated proceedings allege that the settlement proceeds were paid out to SPF or LPF in the sum of about $33 million with the balance to Messrs Walker and Scutter on account of fees and expenses. Both sets of plaintiffs allege that nothing was paid to any creditor, secured or unsecured, of either PVL or the PVL subsidiaries. They allege that Messrs Walker and Scutter and SPF and LPF are required to repay some of the settlement proceeds for various reasons, including breach of fiduciary and statutory duties, knowing receipt, breach of the litigation funding agreement, and knowing (or dishonest) assistance.
[11] The first of the consolidated proceedings, CIV 2019-404-1160, was commenced in 2019. The four plaintiffs allege they are secured creditors of the PVL subsidiaries, so I refer to this as the secured creditors’ proceeding. Initially, there were only four defendants to the secured creditors’ proceeding: Mr Walker, Mr Scutter, LPF and SPF.
[12] When the secured creditors commenced their proceeding, Mr Walker was still the liquidator of PVL and the PVL subsidiaries. In 2021, Mr Walker ceased being the liquidator of those companies. At various dates in 2021 and 2022, Mr Whitley was appointed liquidator of each company.
[13] Upon Mr Walker ceasing to be, and Mr Whitley becoming, the liquidator of PVL and the PVL subsidiaries, some of the defendants in the secured creditors’ proceeding wished to join Mr Whitley, PVL and the PVL subsidiaries to that proceeding, to ensure they were bound by the outcome of any judgment. As a result, in February 2022, Mr Whitley, PVL and the PVL subsidiaries (together the Whitley parties) were joined as the fifth to seventeenth defendants to the secured creditors’ proceeding.
[14] At about the same time as they were joined to the secured creditors’ proceeding, the Whitley parties brought their own proceeding, CIV 2022-404-274, in which they are the first to thirteenth plaintiffs. I will refer to this as the liquidator’s proceeding. There are eight defendants to that proceeding: the four secured creditors, Mr Walker, Mr Scutter, LPF and SPF.
[15] The secured creditors and the Whitley parties both allege that Mr Walker, Mr Scutter, LPF and SPF are required to repay some of the settlement proceeds received from the PVL proceedings. The respective sets of plaintiffs differ as to who should receive any money repaid by those defendants. The secured creditors say any money (or most of it) should be paid to them as holders of securities over the assets of the PVL subsidiaries. The Whitley parties say any money should be paid to Mr Whitley as liquidator of PVL and the PVL subsidiaries.
[16]The two proceedings were consolidated, by consent, in March 2022.
[17] The plaintiffs recently settled with Mr Scutter and discontinued their proceedings against him.
Applications by LPF and SPF for further discovery
[18] LPF and SPF have each applied in the liquidator’s proceeding for further discovery from the Whitley parties. Their applications are, in material respects, identical. It will be convenient to set out some background before describing the categories of documents of which they seek further discovery.
Background to discovery applications
[19] In 2021, orders were made for discovery in the secured creditors’ proceeding. Mr Walker provided some discovery in August 2021. The secured creditors applied for further discovery from Mr Walker.
[20] At that point Mr Walker was self-represented. Soon thereafter, in late 2021, Mr Cooper was appointed as Mr Walker’s litigation guardian. At about the same time, Mr Walker ceased being the liquidator of PVL and the PVL subsidiaries, and Mr Whitley became the liquidator of those companies.
[21] The secured creditors’ application for further discovery from Mr Walker was resolved, by consent, in February 2022. On 8 February 2022, Wylie J made further discovery orders to reflect that resolution. These included that Mr Walker provide to the plaintiffs a copy of the discovery affidavit he made in the PVL proceedings together with the documents referenced in the non-privileged section of that affidavit. Those orders were made shortly before the Whitley parties commenced the liquidator’s proceeding.
[22]As I understand it, Mr Walker complied with the further discovery orders.
[23] In the meantime, Mr Whitley had been taking steps, in his capacity as liquidator of PVL and the PVL subsidiaries, to obtain documents relating to those liquidations. Two steps are relevant. First, on 30 September 2021, he wrote to Mr Walker and formally requested, under ss 261 and 283A of the Companies Act 1993, all documents in Mr Walker’s possession for those companies.1 Mr Whitley followed this up by
1 The notice did not relate to all the PVL subsidiaries, as Mr Whitley had not at that point been appointed liquidator of all of them. This is immaterial for the present application.
bringing, in October 2021, an originating application in this Court for orders under ss 261, 266 and 283A, requiring Mr Walker to deliver up those documents. Jason Goodall KC was appointed Mr Walker’s ligation guardian in that proceeding.
[24] Secondly, Mr Whitley requested documents under s 261 of the Companies Act from Meredith Connell, a firm of solicitors which had, from about March to December 2017, acted for PVL and the PVL subsidiaries on the PVL proceedings and other matters relating to those companies’ liquidations. Meredith Connell declined to provide the documents, taking the position that they belonged to Mr Walker rather than the PVL companies. In December 2021, Mr Whitley filed an application under ss 261 and 266 seeking orders requiring Meredith Connell to deliver up the documents.
[25] Mr Whitley’s application against Meredith Connell was heard in September 2022. By that time, Mr Whitley’s application against Mr Walker had not been resolved or heard. Mr Whitley told the Court that he was pursuing the application against Meredith Connell because of the delays he was experiencing in obtaining the documents from Mr Walker and because he suspected that Meredith Connell’s files would be complete, whereas he had no such confidence with Mr Walker’s files.2
[26] Meredith Connell resisted the application on three main grounds. First, they contended that the files belonged to Mr Walker, not the PVL companies. Secondly, they said there were hundreds of thousands of pages on their files, that the files would contain privileged material (including material for which Mr Walker rather than the PVL companies would enjoy the privilege) and that separating privileged from non- privileged documents would require a costly and time-consuming review. Thirdly, they asserted a lien over the files for unpaid fees of about $300,000.
[27] Most of the hundreds of thousands of pages were on the file relating to the PVL proceedings,3 which I will refer to as MC File 1. Mr Whitley decided to “park” the application in respect of MC File 1 and did not pursue the application in respect of two other files. The application was determined in respect of six remaining files in
2 Whitley v Meredith Connell [2022] NZHC 2994 at [24].
3 At [32].
Whitley v Meredith Connell, a judgment delivered by Associate Judge Paulsen on 16 November 2022. The Judge held that:
(a)The files came into existence during and in the course of the performance by Mr Walker of his duties as liquidator. They therefore belonged to the PVL companies.4
(b)A liquidator’s powers to access documents were not to be exercised beyond the point where unfairness resulted. An order should not be made which will be wholly unreasonable, unnecessary or oppressive.5 Although the files belonged to the PVL companies, it was possible that on the files there were documents in respect of which Mr Walker was entitled to assert privilege (for example, because they related to advice given to him in relation to his personal affairs).6 However, Mr Whitley had limited the files he was seeking, and importantly was not seeking MC File 1, the largest of the files. Reviewing the remaining files would not impose an unacceptable burden on Meredith Connell.7
(c)Section 263 of the Companies Act prevented Meredith Connell from enforcing, as against Mr Whitley as liquidator of the PVL companies, any lien over the files.8
[28] Mr Whitley’s application in respect of MC File 1 was adjourned pending further order of the Court.9 He has not advanced it further.
[29] Mr Walker can be expected to hold documents that will generally correspond to MC File 1, as he was the liquidator instructing Meredith Connell (and previous solicitors) on behalf of the PVL companies through the course of the PVL proceedings. But Mr Whitley has not obtained any documents from the application he brought against Mr Walker. Mr Walker has apparently offered (through his litigation guardian
4 At [68].
5 At [45].
6 At [75].
7 At [76].
8 At [88].
9 At [126].
Mr Goodall) to deliver the documents on conditions, but the conditions are not acceptable to Mr Whitley. Mr Whitley’s application against Mr Walker has not been heard. Mr Whitley appears to have parked it, just as he has parked his application against Meredith Connell in respect of MC File 1.
[30] Returning attention to the current proceedings, by July 2023 the Whitley parties had not provided discovery in the liquidator’s proceeding, and no discovery orders had been made. On 21 July 2023, I ordered the Whitley parties to provide standard discovery by 11 August 2023.
[31] On 5 September 2023, the Whitley parties filed a second amended statement of claim. This introduced two new causes of action.
The discovery applications
[32] The Whitley parties have filed several affidavits of documents. LPF and SPF consider the Whitley parties’ affidavits are incomplete. They apply for orders that the Whitley parties discover three categories of documents:
(a)Documents held by Meredith Connell contained in MC File 1.
(a)Any and all documents held by Mr Walker and/or Mr Scutter (as former liquidators of PVL and/or its subsidiaries) (Liquidator Documents).
(b)Any and all documents held on behalf of Mr Walker or Mr Scutter (as former liquidators of PVL and/or its relevant subsidiaries) including by their current or former agents, such as solicitors (Agency Documents).
[33] The Whitley parties oppose the applications. They say the documents are not in their control, the categories sought lack particularisation, and the further discovery sought would not be proportionate.
[34] I will determine the applications by reference to the three categories of documents sought by LPF and SPF.
MC File 1
[35] The application was argued on the basis that I should only make orders in respect of documents within the control of the Whitley parties.10
[36] Rule 1.3 of the High Court Rules 2016 defines “control” in relation to a document. It means possession of the document, a right to possess the document or a right, other than under the Rules, to inspect or copy the document.
[37] The Whitley parties do not have possession of MC File 1. It was not suggested that they have some right to inspect or copy that file. The issue is whether they have a right to possess the file. This means a “presently enforceable legal right to obtain from whoever actually holds the document inspection of it without the need to obtain the consent of anyone else”.11
[38] Mr Bigio KC, counsel for LPF,12 submitted that the effect of Associate Judge Paulsen’s judgment is that documents previously held by Meredith Connell for Mr Walker and Mr Scutter as liquidators of the PVL companies are now held for Mr Whitley. He submitted that there was no legal barrier to Mr Whitley taking possession of MC File 1 and so the file was in his control.
[39] To the extent that Mr Whitley would have to rely on ss 261 and 266 of the Companies Act to obtain possession of MC File 1, I do not accept that Mr Whitley has a presently enforceable legal right to the file. Mr Moss, counsel for the Whitley parties, referred me to a decision of Associate Judge David Gendall (as he then was), Isac (NZ) Ltd v Managh.13 In that case, the Judge held that a right to request delivery of a document under s 261 and a right to apply for an order under s 266 fell short of
10 A party is also required to discover documents that were previously in that party’s control. That could conceivably have required the PVL companies to discover MC File 1 on the basis the file had previously been in their control. But that would have been an arid exercise if the file was not presently within their control, as the PVL companies would then not have had to make the file available for inspection.
11 Lonrho Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627 (HL) at 635 per Lord Diplock, cited with approval in Lighter Quay Residents Society Inc v Waterfront Properties (2009) Ltd [2017] NZHC 818 at [32].
12 Counsel for SPF adopted Mr Bigio’s submissions for SPF’s discovery application and challenges to admissibility of evidence.
13 Isac (NZ) Ltd v Managh [2012] NZHC 1911.
a presently enforceable legal right to possession of the document in question.14 I respectfully consider the Judge was correct in that holding. This is because a liquidator does not have an unqualified right to an order under s 266 that a person produce documents of the company in liquidation. Rather, as Associate Judge Paulsen explained in the Meredith Connell decision, a court has a discretion whether to make an order. That discretion involves a careful balancing exercise:15
On the one hand, the Court should consider the reasonable requirements of a liquidator to carry out his or her functions, but on the other, there is a need to avoid making an order which will be wholly unreasonable, unnecessary, or oppressive to the person concerned.
[40] Were Mr Whitley to re-engage his application against Meredith Connell in respect of MC File 1, the Court would have to engage in that balancing exercise. Associate Judge Paulsen indicated that Meredith Connell’s resistance to an order in respect of MC File 1, based on the argument that it would necessitate a review of the file that would be unreasonable and oppressive, had some cogency.16
[41] Mr Bigio submitted, however, that one effect of Associate Judge Paulsen’s judgment is that MC File 1 is a file of the PVL companies. He submitted that the PVL companies are therefore entitled, in the same way as any client of a solicitor, to require Meredith Connell to deliver the file to them. Mr Bigio said that Mr Whitley can, as liquidator and agent of the PVL companies, communicate this requirement to Meredith Connell and that he does not have to rely on ss 261 and 266 to do so.
[42] I do not accept that submission. It is true that a liquidator is generally described as an agent of the company. But it is not a general or normal agency.17 A liquidator’s powers are those specified in s 260 of the Companies Act: those powers necessary to carry out the functions and duties of a liquidator under the Act, and those powers conferred on a liquidator by the Act. I therefore consider that a liquidator’s power to require a person to deliver up documents of the company is exclusively found in ss 261 and 266 and is subject to the constraints in those provisions that I have earlier identified. Were a liquidator able, outside ss 261 and 266, to require a solicitor of the
14 At [29].
15 At [45]. See also at [91]
16 At [108].
17 Dunphy v Sleepyhead Manufacturing Co Ltd [2007] NZCA 241, [2007] 3 NZLR 602 at [22].
company to deliver up documents, there would seem little point in s 263 restricting the enforcement of liens over documents, given that such liens most commonly arise in the solicitor-client relationship.
[43] I therefore conclude that MC File 1 is not within the control of the Whitley parties.
The Liquidator Documents
[44] In respect of the documents held by the previous liquidators Mr Walker and Mr Scutter, LPF and SPF say that these are within the control of the Whitley parties by virtue of both ss 261 and 283A of the Companies Act. Section 283A(2) provides that, where a replacement liquidator has been appointed, the previous liquidator:
… must, where practicable, provide to the replacement liquidator the information that the previous liquidator has in their possession or under their control and that the replacement liquidator reasonably requires to carry out the functions and duties of a liquidator.
[45] For the purposes of s 283A(2), “information” includes documents of the company. A person who fails to comply with s 283A(2) commits an offence.18 The Act does not have a section specifically directed at enforcement of the obligation in s 283A(2) (that is, there is no equivalent to s 266). However, a replacement liquidator could apply for a direction under s 284 requiring the previous liquidator to comply with the obligation in s 283A(2). That is what Mr Whitley did when he brought the application against Mr Walker.
[46] I consider that the avenues available to Mr Whitley under ss 283A and 284 do not mean that he has a presently enforceable legal right to obtain the Liquidator Documents from Mr Walker and Mr Scutter.19 Section 283A is similar to ss 261 and 266 in that it does not give an unqualified right to documents. First, it is limited to those documents that Mr Whitley “reasonably requires” to carry out his functions and
18 Companies Act 1993, s 283A(5).
19 In Body Corporate 422631 v Queenstown Lakes District Council [2022] NZHC 543, Associate Judge Lester proceeded on the assumption that the avenues available to a replacement receiver under the equivalent provisions of the Receiverships Act 1993 meant that documents in the possession of the previous receiver were within the control of the replacement receiver. However, it was not a point that had to be decided, and the Judge was not alerted to Isac (NZ) Ltd v Managh [2012] NZHC 1911.
duties as a liquidator. Mr Whitley deposed that he has managed to carry out his functions and duties as liquidator adequately without the documents that Mr Walker has declined to provide to him. I do not treat that evidence as determinative. But I consider it would not be straightforward for Mr Whitley, even if he had not made that statement, to obtain an order against Mr Walker (or Mr Scutter), given the passage of time. Secondly, the obligation under s 283A is merely to provide documents “where practicable” and the court has a discretion whether to make directions under s 284. This likely opens up room for a balancing exercise of the sort that applies under s 266.
[47] I therefore conclude that the Liquidator Documents are not within the control of the Whitley parties.
The Agency Documents
[48] The final category of documents is those documents that are held on behalf of Mr Walker or Mr Scutter, as former liquidators of the PVL companies, including by their former and current agents, such as solicitors.
[49] I have held that the documents held by Mr Walker and Mr Scutter are not within the control of the Whitley parties. It follows that documents held on behalf of Mr Walker or Mr Scutter are not within the control of the Whitley parties.
Conclusion
[50] None of the documents are within the control of the Whitley parties. LPF’s and SPF’s applications for discovery therefore fail. It is not necessary for me to address the other issues between the parties on these applications.
Application by Mr Walker for further discovery
Background to discovery application
[51] Mr Walker’s application for further discovery arises out of affirmative defences and counterclaims that he pleaded in his statement of defence and counterclaim dated 9 October 2023. Those pleadings are based on a Settlement Deed entered into on 22 October 2020 by (among others) Mr Walker, David Henderson, the first to third
plaintiffs in the secured creditors’ proceeding and the plaintiffs in the liquidator’s proceeding. The Settlement Deed includes undertakings that “Ms Buxton and Mr Henderson or any entity associated with them” will not bring claims (other than the then-existing secured creditors’ proceeding) against Mr Walker. Mr Walker alleges that Mr Henderson is associated with Mr Whitley (as liquidator of the PVL companies) because he:
(a)initiated and orchestrated Mr Whitley’s appointment as liquidator;
(b)funds Mr Whitley to bring the liquidator’s proceeding; and
(c)acts jointly and in concert with Mr Whitley in bringing and pursuing the two consolidated proceedings.
[52] The plaintiffs in both proceedings deny these allegations. Given that factual dispute, Mr Cooper wrote to the solicitors for the plaintiffs seeking discovery of documents relating to the dispute (in specified categories). Having received no response, Mr Cooper sought orders that the plaintiffs provide further discovery.20
The discovery orders sought by Mr Cooper
[53] In the secured creditors’ proceeding, Mr Cooper seeks an order that the plaintiffs provide further discovery by filing a supplementary affidavit of documents which complies with r 8.15 and lists documents in the following categories:
(a)Documents recording communications between the plaintiffs or Mr Henderson (or anyone acting on their behalf) and Mr Whitley (or anyone acting on his behalf) in relation to: (i) Mr Whitley’s appointment; (ii) funding provided to Mr Whitley; or (iii) the claims brought by Mr Whitley in the liquidator’s proceeding.
20 Mr Cooper sought the orders informally (by memorandum) and after the close of pleadings date. He sought leave to proceed in that manner. None of the plaintiffs opposed leave, which I grant.
(b)Documents recording or relating to any payments from the plaintiffs or Mr Henderson to, or otherwise for the benefit of, Mr Whitley or any of the plaintiffs in the liquidator’s proceeding.
(c)Any other documents in the possession of the plaintiffs relating to Mr Whitley’s appointment or funding.
(d)Documents relating to Mr Henderson’s engagement by Mr Whitley in relation to the liquidation of the plaintiffs in the liquidator’s proceeding.
[54] In the liquidator’s proceeding, Mr Cooper seeks an order that the plaintiffs provide further discovery by filing a supplementary affidavit of documents which complies with r 8.15 and lists documents in the following categories:
(a)Documents recording communications between Mr Whitley (or anyone acting on his behalf) and Mr Henderson or 100 Investments Ltd or the other plaintiffs in the secured creditors’ proceeding (or anyone acting on their behalf) in relation to: (i) Mr Whitley’s appointment as liquidator of the plaintiffs; (ii) funding for the liquidator’s proceeding; or (iii) the claims brought in the liquidator’s proceeding.
(b)Documents recording or relating to any payments from Mr Henderson or 100 Investments Ltd or the other plaintiffs in the secured creditors’ proceeding (or anyone acting on their behalf) to, or otherwise for the benefit of, Mr Whitley or any of the plaintiffs (or anyone acting on their behalf).
(c)Documents relating to Mr Whitley’s appointment as liquidator of the plaintiff companies.
(d)Documents recording or relating to the funding of the liquidator’s proceeding, including documents recording or relating to the “recoveries” alleged in paragraph [3](b) of the plaintiffs’ reply.
(e)Documents relating to Mr Henderson’s engagement by Mr Whitley in relation to the liquidation of the plaintiffs in the liquidator’s proceeding.
[55] Mr Cooper also sought an order (in both proceedings) that the supplementary affidavits of documents list individually any documents falling within the specified categories and for which privilege is claimed.
[56] The plaintiffs in the two proceedings do not oppose discovery orders being made for many of these categories. I need only address those categories that are in dispute. No issue was raised with the direction that documents for which privilege is claimed be listed individually.
Category (a)(ii) – documents recording communications relating to funding
[57] Both sets of plaintiffs say that this category is too widely drawn. They say it should be sufficient for the plaintiffs to provide documents that describe or identify in summary form the source of the funding provided to Mr Whitley. They say this can be done by the discovery and production of the statutory reports completed by Mr Whitley on the liquidation of each PVL company, which the plaintiffs say will show who has funded Mr Whitley.
[58] Mr Moss provided me with two examples of Mr Whitley’s statutory reports, each for PVL. These provide only sparse information as to funding. They report that 100 Investments Ltd provided some upfront funding and that “this creditor” continues to fund the liquidator’s costs “in the liquidation”. One of the reports also records “Advances from Creditors” (plural) during the relevant six-month period. This suggests that more than one creditor is funding the liquidation, but it is not possible to determine who that is.
[59] In any event, the statutory reports do not record communications between the plaintiffs or Mr Henderson and Mr Whitley (or those acting on behalf of those persons) in relation to funding. I accept Mr Cooper’s submission that documents recording such communications are relevant to the issue in dispute, namely whether Mr Henderson is associated with Mr Whitley (as liquidator of the PVL companies).
[60]This category of documents should be discovered.
Category (a)(iii) – documents recording communications relating to the claims
[61] The plaintiffs say this category of documents is irrelevant because the claims can speak for themselves. I disagree. The issue is whether Mr Henderson is associated with Mr Whitley. “Associated” appears to be a broad concept. Documents that record communications between Mr Henderson and Mr Whitley (or between the secured creditors and Mr Whitley) in relation to the claims brought by Mr Whitley in the liquidator’s proceeding are plainly relevant to whether they are associated, or as to whether (as Mr Walker pleads) Mr Henderson acts in concert with Mr Whitley in pursuing the two proceedings.
[62] As a fallback position, the plaintiffs say that it would be disproportionate to review all communications falling into this category at this late stage of the proceedings, as any documents in this category will be subject to litigation privilege. I am not going to predetermine whether these documents would be privileged. Further, the plaintiffs did not file any evidence to support their contention that discovery of this category of documents would be onerous. This category should be discovered.
Category (b) – documents recording or relating to payments
[63] The plaintiffs treated this as a repeat of category (a)(ii) and said that discovery of the statutory reports would suffice.
[64] This category is not the same as category (a)(ii). That category is of documents that record communications in relation to payments. This category is of documents recording (or relating to) the payments themselves. This category should be discovered (and disclosure of the statutory reports will not suffice) for the same reasons I gave in relation to category (a)(ii).
Liquidator’s proceeding – category (d) – documents recording or relating to the funding of the liquidator’s proceeding, including documents recording or relating to “recoveries” alleged in paragraph [3](b) of the plaintiffs’ reply
[65] Mr Moss submitted that the recoveries that any of the Whitley parties have obtained are irrelevant. However, in the liquidator’s proceeding, in reply to Mr Walker’s allegation that Mr Henderson is funding Mr Whitley to pursue the proceeding, the Whitley parties have pleaded that the majority of the funding of that proceeding has been from recoveries by Mr Whitley in the liquidations. Having pleaded this, I consider that documents recording or relating to such recoveries are relevant. Mr Moss said there had only been two recoveries to date, so discovery of this category cannot be said to be disproportionate.
Conclusion
[66]I will make discovery orders for all the categories sought by Mr Cooper.
Application by Mr Cooper for directions in relation to discovery
[67] Mr Cooper has applied for directions as to what, if any, further steps are required by him in relation to Mr Walker’s discovery.
[68]As background, in the secured creditors’ proceeding:
(a)By early July 2021, Mr Walker had provided various documents, including electronic copes of the discovered documents in the PVL proceedings. These numbered in (at least) the tens of thousands of documents.
(b)On 20 July 2021, Mr Walker filed an affidavit of documents.
(c)In September 2021, the secured creditors applied for further discovery. That application was resolved by consent in February 2022 (after Mr Cooper’s appointment as litigation guardian). Mr Walker provided a further affidavit of documents in response to the consent orders in late February 2022.
[69] There has been no further application for discovery against Mr Walker in either proceeding. Mr Whitley has, through Mr Moss, informally sought some additional discovery but not pursued it as he obtained documents from third parties.
[70] As noted earlier, Mr Whitley brought an application under ss 283A and 284 of the Companies Act against Mr Walker, but has not pursued that to a hearing. Mr Whitley has also “parked” his application against Meredith Connell to deliver up MC File 1.
[71] On 2 November 2023, Mr Moss wrote to Mr Cooper about, among other things, discovery. Mr Moss acknowledged that Mr Cooper was in a difficult position as he had to rely on Mr Walker to provide him with documents. He then said:
(a)Mr Walker, and Mr Cooper as his litigation guardian, have obligations “as a party” to provide all relevant documents under continuing discovery.
(b)That when Mr Cooper was first appointed litigation guardian “you would have reviewed what he had provided [by way of discovery] to that point. You should have seen that it was woeful. … Surely you asked him for the documents and told him you had an obligation to review them.”
(c)If Mr Cooper had not reviewed the documents, “what is your reason for not doing that in light of your obligations of continuing discovery?”
(d)That Mr Cooper had previously raised the issue of not having the capacity to carry out all the work required. Mr Moss said this was not only unfair on the other parties but “an abuse of process”.
[72] Given Mr Moss’s allegations, Mr Cooper sought directions as to what, if any, further steps he is required to take in relation to Mr Walker’s discovery in these proceedings. He explained that, as litigation guardian, he has not sought to take possession of the documents that are within Mr Walker’s control, nor to independently
review them. When dealing with the secured creditors’ request for further discovery, he relied on Mr Walker to identify the relevant documents. Mr Cooper said it has never been practicable for him to review all potentially relevant documents in Mr Walker’s control. Mr Walker has advised him that he has a file server with records comprising 35,000 files in 2,400 folders occupying 21.2 gigabytes of space. To review these documents would require, Mr Cooper estimates, the engagement of an adequately resourced firm of solicitors. The task would take months.
[73] Mr Cooper addressed me briefly on this matter at the hearing. He told me he had been unable to find any relevant authority on the obligations of litigation guardians. He submitted that he was not, as litigation guardian, obliged to undertake a review of the type proposed by Mr Moss in his letter.
[74] No other party wished to be heard on the matter. Mr Moss, despite having made the allegations, made no submissions.
[75] Given the need to deliver this judgment promptly so that it can be of most use to the parties, I have not attempted my own researches on the obligations of litigation guardians in relation to discovery. I am satisfied that:
(a)Mr Cooper is not a party to the proceedings. A litigation guardian conducts a proceeding on behalf of an incapacitated person, but is not a party to the proceeding. It follows that Mr Cooper does not, and has not ever had, an obligation of continuing discovery in these proceedings.
(b)At least in the circumstances of this case, Mr Cooper is not obliged to undertake a review of the documents that are within Mr Walker’s control. The relevant circumstances are that: Mr Cooper assisted Mr Walker to provide further discovery in early 2022; that further discovery was made under consent orders; no party has since applied for further discovery from Mr Walker; Mr Walker has a voluminous number of documents within his control and any review would take significant time at substantial cost; and Mr Moss’s request came at the
last minute and appears to have been prompted by the applications made by LPF and SPF for further discovery, rather than by any desire (hitherto largely absent) on Mr Whitley’s part to inspect the documents within Mr Walker’s control.
[76]I will make directions accordingly.
Challenges by Mr Walker, LPF and SPF to admissibility of plaintiffs’ evidence
[77] Mr Walker, LPF and SPF all challenge the admissibility of briefs of evidence served by the plaintiffs in both proceedings. In the secured creditors’ proceeding, they challenge the briefs of Mr Henderson (in part), Michael Whale (in its entirety) and Kerryn Downey (in its entirety). In the liquidator’s proceeding, they challenge large parts of the brief of Mr Whitley.
[78] The challenges by the three defendants were, in respect of each brief, largely the same. Mr Cooper made the principal submissions on the challenges. Mr Bigio adopted those submissions and made some additional submissions on the briefs of Mr Whale and Mr Downey.
Challenges to Mr Henderson’s brief
[79] Mr Henderson was formerly a director of PVL and the PVL subsidiaries. He ceased being a director of those companies upon being adjudicated bankrupt on 29 November 2010.
[80] Mr Henderson is currently a director of the four plaintiffs in the secured creditors’ proceeding. It is clear from his brief that he was not always a director of those plaintiffs, because he says, at paragraph [3]:
For the periods that predate my appointment as a director of each of the [secured creditor plaintiffs] I have relied [in giving evidence] upon the documentary records and other company records of the [secured creditor plaintiffs].
[81] Mr Henderson does not say when he was appointed director of those plaintiffs. However, he must have been appointed some time after 9 December 2022. Prior to
then, he was either bankrupt or subject to an order prohibiting him from being a director of any company (or from directly or indirectly being concerned, or taking part, in the management of any company).21
[82] There are numerous passages in Mr Henderson’s brief addressing events in which it is apparent he was not directly involved. It is clear from paragraph [3] of his brief that in preparing these passages Mr Henderson has relied on documents (which he refers to in the various passages). Here are some examples:
[27] On 1 September 2016 10022 exercised its rights under the PFS GSA23 and entered into possession of all LVL’s assets (excluding 96 Lichfield Street, Christchurch). [Document reference] is the notice of entry into possession of mortgaged property dated 5 September 2016. No further recoveries were made as mortgagee in possession.
…
[45] On 1 June 2012 [South Canterbury Finance Ltd] entered into an Asset Sale Agreement with [Crown Asset Management Ltd] [document reference] whereby it transferred and assigned to CAML …
…
[47] As at 30 April 2015, [Cashel Ventures Ltd]’s indebtedness to [Crown Asset Management Ltd] guaranteed by [Tuam Ventures Ltd] had an outstanding balance of $13,440,478.61. A copy of the loan statement obtained from CAML showing the balance is at [document reference].
…
[53] On or around 19 November 2019 FCS, [Crown Asset Management Ltd], BNZ and the receivers (on behalf of [Tuam Ventures Ltd]) entered into a Deed of Assignment and Novation [document reference], which had the effect of validly assigning to [Crown Asset Management Ltd] all of the rights of FCS under the CFL debts and securities by virtue of the [South Canterbury Finance Ltd] Asset Sale Agreement, and all of the rights of [Crown Asset Management Ltd] under the CFL debts and securities were validly assigned in equity to FTG24 by virtue of the CAML deed of transfer.
[83] The defendants challenge the admissibility of these and similar passages. They do not, as yet, take a position on whether the documents to which Mr Henderson refers are admissible. Mr Cooper submitted that the passages are not evidence of what Mr
21 Havenleigh Global Services Limited v Henderson [2016] NZHC 2969 at [446].
22 100 Investments Ltd, the first secured creditor plaintiff.
23 A general security agreement granted by Lichfield Ventures Ltd (one of the PVL subsidiaries) to Propertyfinance Securities Ltd.
24 FTG Securities Ltd, the second secured creditor plaintiff.
Henderson saw, heard or otherwise perceived and are therefore inadmissible. He said that the passages are in the nature of submission, in breach r 9.7(4)(d). Mr Bigio added that some of the material in the passages also breaches r 9.7(4)(f) (which provides that a brief must avoid the recital of the contents or a summary of documents that are to be produced in any event).
[84] Mr Barker KC, for the secured creditor plaintiffs, submitted that a witness is entitled to produce documents, particularly business records. He submitted that Mr Henderson’s discussion of relevant assignments and other events is based on those documents and that such discussion are generally admissible, subject to the constraint in s 8(1)(b) of the Evidence Act 2006 (that a Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will needlessly prolong the proceeding). He acknowledged that there were some limited instances where the brief strayed into submission or into unnecessary recital of the content of documents.
[85] I begin by addressing the defendants’ primary submission that the passages are inadmissible because they are not evidence of what Mr Henderson saw, heard or otherwise perceived. There is no such blanket rule of inadmissibility. To the extent that Mr Henderson recounts events that he did not directly perceive, his evidence may well rely on or consist of hearsay statements and therefore be generally inadmissible under s 17 of the Evidence Act. But not necessarily. It depends on whether the out- of-court statement is offered to prove the truth of its contents.25 Counsel did not address me on that. While many of the passages appear likely to have that purpose, it is not possible for me to identify that in every case. Even if the passages were generally inadmissible under s 17, they may pass through the various admissibility gateways provided in the Evidence Act. Counsel did not address me on those, and it is not something that I can determine (for the many instances where it may arise) prior to trial.
[86] For those reasons, I decline to rule at this stage on the primary challenge made by the defendants to these passages in Mr Henderson’s brief. This includes the
25 Evidence Act 2006, s 4 (definition of hearsay statement).
challenges to paragraphs [28], [55], [61], [76], [83] and [91] and the schedules to Mr Henderson’s brief (which contain calculations put forward by Mr Henderson).
[87] I now consider the challenges based on r 9.7(4)(d) and (f). I accept many of these, in the following passages:
(a)Passages in the nature of submission: [46]; [51] (from “and thereby”);
[53] (from “which had the effect”); [56]; [61] (last sentence); [77]; [83] (last sentence); [91] (last sentence); [103]; [113] (second sentence);
[123] (second sentence); and [141].
(b)Passages that unnecessarily recite from documents: [45] (from “whereby”); [50]; [96] (the quote); [99] (last sentence); [119] (second sentence and sub-paragraphs); [120] (second sentence onwards); [121]; [129]; [132]; and [136].
[88] Those passages are inadmissible and must be removed from Mr Henderson’s brief.
[89] LPF and SPF also challenge paragraphs [149] and [150] on the basis that they refer to without prejudice communications that are privileged. It is not possible to determine this challenge before trial.
Challenges to Mr Whale’s brief
[90] Mr Whale is a lawyer. He has practised for more than 40 years, specialising in insolvency and restructuring law and banking and finance law. He has acted for many insolvency practitioners in Auckland and throughout New Zealand, advising them on liquidations, receiverships, voluntary administrations and statutory managements. He is a co-author of the leading New Zealand text on insolvency law. There is no dispute he is an expert in the field of insolvency law.
[91]In his brief, Mr Whale provides his expert opinion on six questions. These are:
(a)Question one: What steps, if any, should a liquidator have taken to ensure that the interests of the creditors were protected prior to the issuing of the proceedings and upon their settlement, and how would a reasonable liquidator have ensured that the interests of creditors of the PVL Subsidiaries were protected?
(b)Question two: How should a reasonable liquidator of PVL and the PVL Subsidiaries have ensured that the settlement proceeds were applied?
(c)Question three: Were the terms of the Funding Agreement terms that a reasonable liquidator would have agreed to and were the terms of the settlements and the division of the proceeds terms that a reasonable liquidator would have agreed to?
(d)Question four: Would a Reasonable Liquidator have entered into the Terms of the Distribution Agreement on 19 August 2017?
(e)Question five: Were the fees and expenses paid under the Funding Agreement paid in accordance with the terms of that Agreement?
(f)Question six: How should a reasonable liquidator have applied the recoveries made under voidable transactions and what steps, if any, should have been taken to ensure the protection of the interest of unsecured creditors in relation to such recoveries?
[92] The defendants object to the entirety of Mr Whale’s brief. They say that Mr Whale answers these questions by expressing an opinion on matters of law and then applying his opinion to the facts of the case as he sees them (which the defendants say is based on a fairly narrow range of documents provided to Mr Whale). The defendants say matters of law are for submission, not expert evidence. The defendants say the plaintiffs have tried to dress up Mr Whale’s brief as evidence of what a reasonable liquidator would do, but that in substance Mr Whale is offering opinions on matters of law. Further, they say Mr Whale is not qualified to give evidence as to what a reasonable liquidator would do, as he has never been a liquidator, and that he
is not qualified to give evidence on the reasonableness of the terms of litigation funding agreements. They also say that evidence as to what a reasonable liquidator would do is irrelevant to the matters in dispute, as there is no allegation that Mr Walker failed to do what a reasonable liquidator would have done.
[93] LPF and SPF also say that Mr Whale lacks impartiality. I accept Mr Barker’s submission that this is a matter that can only properly be explored at trial. I say no more about it (or about the equivalent challenge to Mr Downey’s brief).
[94] I also accept Mr Barker’s submission that whether Mr Whale is qualified to give expert opinion evidence as to what a reasonable liquidator would do is a matter for trial. An expert is a person who has “specialised knowledge or skill based on training, study, or experience”.26 At this stage, I am not prepared to find that Mr Whale is not qualified as an expert simply because he has never been a liquidator.
[95] The defendants’ objection that Mr Whale is not qualified to provide opinions on the reasonableness of the terms of litigation funding agreements was directed at question three. I accept that Mr Whale does not qualify himself to give such opinions. But in answering question three, for the most part Mr Whale confines himself to whether a reasonable liquidator would have approached other funders, sought court approval or ensured the agreement included a term addressing a security issue. His opinions generally do not address the reasonableness of the terms of the agreement. An exception is found in paragraph [54] of his brief. Also inadmissible is paragraph [53], which is a non-expert observation on another item of evidence. Both paragraphs are to be removed.
[96] In answering the six questions, Mr Whale makes observations on some matters of law. For the most part, he does do only to provide context to or explain the opinions that he conveys. I therefore consider that he generally does not transgress into matters that are properly only for the Court. There are some exceptions:
(a)In answering question four, in the second sentence of paragraph [61] Mr Whale expresses the view that there was a gross breach of a duty to
26 Evidence Act 2006, s 4.
act in the best interests of the creditors of PVL. Such matters are for me to determine.
(b)Question five asks whether certain fees and expenses were paid “in accordance with the terms of” the Funding Agreement. This necessarily involves interpretation of that agreement. This is a matter for the Court. It should not have been put to Mr Whale. Mr Whale understood this, as he answered by saying that he took “no position on the interpretation issue”. He nonetheless then made some observations. He need not have done so. The observations are not substantially helpful to me.
(c)Question six purports to address how a reasonable liquidator should have applied recoveries from voidable transactions. In substance, it addresses how as a matter of law such recoveries should be applied. This is evident from Mr Whale’s answer, which includes reference to commentary in his insolvency law text. I expect I will receive submissions relying on that commentary in due course. I do not also need evidence to the same effect.
[97] Accordingly, the second sentence of paragraph [61] and paragraphs [65]–[80] are to be removed from Mr Whale’s brief.
[98] As to the balance of Mr Whale’s brief, the remaining question is whether his opinions on what a reasonable liquidator would or should have done are relevant to any matters in dispute in the proceeding. I acknowledge that the plaintiffs do not plead that Mr Walker owed or breached a duty of care. The relevant pleadings allege breaches of various fiduciary and statutory duties. Further, mere carelessness does not constitute a breach of fiduciary duty.27 However, Mr Barker’s written submissions referred to several cases which he said supported the proposition that a careless lack of attention to the affairs of a person to whom a fiduciary duty is owed can show a subordination of the interests of the beneficiary to those of a fiduciary. That is, the proposition is that carelessness may be evidence of breach of a fiduciary duty.
27 Bristol and West Building Society v Mothew [1998] Ch 1 at 18.
Submissions at the hearing did not address this point. In the absence of full argument, I am not prepared to rule, pre-trial, that Mr Whale’s opinions are irrelevant and not substantially helpful.
Challenges to Mr Downey’s brief
[99] Mr Downey is a chartered accountant. He has had considerable experience as a liquidator.
[100] Mr Downey provides expert opinions on “various matters” relating to the proceedings. He does not state what those issues are. He says at the outset that he has read Mr Whale’s brief and agrees with it. The general structure of Mr Downey’s brief is to then refer to certain paragraphs of Mr Whale’s brief, express agreement, and add some commentary. Sometimes that commentary includes an opinion as to what a reasonable liquidator should have done. But the commentary also includes:
(a)Factual conclusions that Mr Downey purports to draw: paragraphs [22], [31], [42], [51], [54], [55] and [62] (first sentence).
(b)Opinions on matters of law: paragraphs [63] and [66].
(c)Comments on the evidence: paragraphs [35], [43], and [45].
(d)Intemperate language: paragraphs [42] and [58].
[101] Clause 3(c) of the Code of Conduct for Expert Witnesses provides that, in any evidence given by an expert witness, the expert must “state the issues the evidence of the expert witness addresses”. Mr Cooper submitted that Mr Downey’s brief does not comply with cl 3(c). Mr Barker said that this was a technical objection that could be cured by having Mr Downey state in a brief paragraph what he goes on to say in the substance of his brief.
[102] The objection is not a technical one. If an expert does not comply with the Code of Conduct, his or her evidence may only be given with the permission of the
Judge.28 The purpose of cl 3(c) (and other aspects of the Code of Conduct) is to ensure that the expert witness’s evidence is transparent. If that is not done, it is difficult for the Court to assess it and (as Mr Bigio rightly submitted) for an opposing party to instruct their own expert to respond to the brief. A failure to comply with cl 3(c) may not undermine this purpose if the issues that the expert addresses are otherwise clear from the brief. Regrettably, that is not the case here. As to a proposed cure, I doubt that a brief paragraph could capture the smorgasbord of matters that Mr Downey addresses throughout his commentary. Anyway, the plaintiffs were given notice of this objection on 2 November 2023. They have had ample time to devise a cure, but have not provided one.
[103] Further, as my summary at [100] should show, Mr Downey’s brief includes a large amount of inadmissible material. There are also significant parts of the brief that refer to and rely on parts of Mr Whale’s brief that I have held to be inadmissible.
[104] The result of these various problems is that I am of the firm view that I am not likely to obtain substantial help from the opinions expressed by Mr Downey. His brief is therefore inadmissible.
Challenges to Mr Whitley’s brief
[105] Mr Whitley gives evidence as a witness of fact. In large part his evidence consists of a chronological narrative of events with which he was not personally concerned. That narrative is based on documents that he has accessed since been appointed liquidator of the PVL companies.
[106] The defendants challenge the admissibility of that narrative, on the same basis as their primary challenge to a similar narrative in Mr Henderson’s brief. I reject that challenge, for the reasons I gave earlier in relation to Mr Henderson.
[107]However, I accept some of the specific challenges to Mr Whitley’s brief:
28 Evidence Act 2006, s 26(2).
(a)Passages in the nature of submission: [16]–[18]; [56] (before “when”); [63]–[64]; [73]; [80]–[82]; [83] (last sentence); [135]; [160]; and [167]–[168].
(b)Inadmissible opinion: paragraphs [14] (last sentence) and [16]–[18]. Mr Moss submitted that Mr Whitley could be qualified as an expert at the trial, so as to admit these opinions. It is rather too late to do that. The defendants’ objections were raised well before the hearing. No attempt was then made to qualify Mr Whitley. In any case, most of the opinions are also in the nature of submission and inadmissible for that reason.
[108]The above passages must be removed from Mr Whitley’s brief.
Costs
[109] I will give directions on costs when delivering judgment on the remaining three interlocutory applications.
Result
[110] I decline LPF’s and SPF’s applications for further discovery against the Whitley parties.
[111]I make the discovery orders sought by Mr Cooper, set out at [53]–[55].
[112]I make these directions:
(a)Mr Cooper does not, and has not ever had, an obligation of continuing discovery in these proceedings.
(b)Mr Cooper is not obliged to undertake a review of the documents that are within Mr Walker’s control.
[113] The passages in Mr Henderson’s brief set out at [87] are inadmissible and must be removed from his brief.
[114] The passages in Mr Whale’s brief set out at [95] and [97] are inadmissible and must be removed from his brief.
[115]The entirety of Mr Downey’s brief is inadmissible.
[116] The passages in Mr Whitley’s brief set out at [107] are inadmissible and must be removed from his brief.
Campbell J
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