Affordable Housing Limited v Body Corporate 1965511
[2023] NZHC 776
•5 April 2023
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CIV-2019-470-135
[2023] NZHC 776
BETWEEN AFFORDABLE HOUSING LIMITED
Plaintiff/Applicant
AND
BODY CORPORATE 396511
Defendant/Respondent
Hearing: 1 November 2022 Appearances:
BM Easton for Plaintiff/Applicant
JP Wood for the Defendant/Respondent
Judgment:
5 April 2023
JUDGMENT OF ASSOCIATE JUDGE SUSSOCK
This judgment was delivered by me on 5 April 2023 at 4.30pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors:
Grimshaw & Co, Auckland Court One, Auckland
AFFORDABLE HOUSING LTD v BODY CORPORATE 396511 [2023] NZHC 776 [5 April 2023]
Introduction
[1] The plaintiff, Affordable Housing Limited (Affordable), has applied for further and better discovery from the defendant, Body Corporate 396511 (the Body Corporate), in regard to six categories of documents.
[2] The original discovery order made in August 2020 was a tailored discovery order based on categories proposed by the defendant in a memorandum dated 17 August 2020.
[3] The plaintiff had sought an order for standard discovery. Associate Judge Andrew (as his Honour then was) however held that a tailored discovery order was appropriate but reserved leave to the plaintiff to seek further discovery orders if, upon completion of the initial list of documents, that could be justified.1
[4] The plaintiff says that the six categories of documents now sought either fall within the ambit of the tailored discovery order made or are relevant to issues to be determined in the proceeding and so ought to be discovered under r 8.18 of the High Court Rules 2016. If the Court does not accept that the categories now sought do fall within the original order or r 8.18, the plaintiff seeks an extension of the tailored discovery order to include these categories under r 8.17.
[5] The defendant has now agreed to provide (and has provided) discovery of category 5 so it is no longer in issue. In addition, the parties agree that the documents in category 3 are protected by privilege. The other owners of that privilege have not agreed to it being waived. These documents are therefore required to be recorded in Part 2 of the defendant’s affidavit but otherwise this category is no longer in issue except as to costs.
[6] The defendant says that the remaining categories are either not relevant or do not advance Affordable’s case such that their discovery would be disproportionate and/or unduly onerous on the defendant.
1 Affordable Housing Limited v Body Corporate 396511 HC Tauranga CIV-2019-470-135, 20 August 2020 (Minute of Associate Judge Andrew).
[7] I briefly set out the factual background and relevant legal principles below before considering each of the remaining categories sought.
Factual background
[8] A detailed chronology of the events leading up to this proceeding is set out by Associate Judge Gardiner in her judgment on the Body Corporate’s application for strike out and/or summary judgment of Affordable’s statement of claim.2 I set out a brief summary for the purposes of this application.
[9] The proceeding concerns a residential unit title complex known as the Cayman Apartments (The Caymans) in Mt Maunganui.
[10] Affordable owns Unit 5B4 at the complex. The Body Corporate owns the common property.
[11]Affordable says that its claims arise from the following circumstances:
(a)The Body Corporate and 47 other owners at The Caymans issued proceedings against the Tauranga City Council, as well as other defendants, seeking compensation for alleged building defects (Complex Claim).
(b)Affordable did not participate in the Complex Claim.
(c)Despite repeated requests from Affordable, the Body Corporate refused to claim the estimated repair costs to common property which Affordable would be levied for.
(d)Despite the Body Corporate’s refusal to claim the total estimated cost of repair for the common property, the Body Corporate levied Affordable on the same basis as all other unit owners for the costs of the litigation and the experts’ fees. This included costs of prosecuting claims that related to unit property rather than common property and of prosecuting claims on behalf of the second plaintiff unit owners.
2 Affordable Housing Ltd v Body Corporate 396511 [2021] NZHC 3149 at [14]–[67].
Affordable submits that the levy in respect of the prosecution of the second plaintiff unit owners’ claim has always been ultra vires the Unit Titles Act,3 saying by way of example that it was levied for the legal costs of providing discovery and briefs of evidence on behalf of the second plaintiff unit owners.
[12]Affordable is now suing the Body Corporate for:
(a)failing to claim Affordable’s share of common property losses in the Complex Claim;
(b)levying Affordable for investigation and litigation costs which include attendances relating to unit property and claims made for the second plaintiffs;
(c)Affordable’s proportionate share of the settlement monies derived from the Complex Claim that relates to common property and Affordable’s contribution to legal and expert costs relating to other units at Cayman Apartments comprised of levies raised against its unit.
Original discovery order
[13] As stated, the Court ordered tailored discovery by Minute dated 20 August 2020 with the order made as follows:
[5]I find that the parties should provide tailored discovery with the scope of the tailored discovery order to be informed by and include the following:
(a)The documents described as relevant by the defendant at paragraph 7(a) – (e) of the defendant’s memorandum dated 17 August 2020;
(b)All evidence in chief filed in the complex claim by the Body Corporate and owners that deal with the defects, scope and costs of repair, and the affected value of the complex;
(c)Documents relating to the plaintiff’s separate claim that established the nature of the claim and the amount it accepted in settlement including reports in evidence;
(d)Documents relating to the levies raising the complex claim and the alleged default by the plaintiff in payment and payments made by the plaintiff;
3 Body Corporate No 85403 v Magill (2008) 9 NZCPR 399.
(e)All pleadings in the complex claim and the plaintiff’s separate claim but excluding the defences of defendants against whom the claim was discontinued and the various cross-claims as between the defendants;
(f)A copy of the conduct and distribution agreement in the complex claim;
(g)A copy of the settlement agreement that has been reached in the complex claim, subject to the defendant obtaining permission from the parties to that settlement for the agreement to be disclosed. In the event that no agreement is forthcoming from those other parties, leave is granted to the plaintiff in this proceeding to apply for further directions;
(h)Documents relating to the plaintiff’s decision not to join the complex claim and relating to why the complex claim was filed without including the plaintiff or why the plaintiff was not included subsequently.
[14] The defendant’s memorandum referred to in (a) above recorded that the documents described as relevant included those pertaining to:
(a)The exclusion of the plaintiff and/or the plaintiffs’ alleged loss from the complex claim, including:
(i)All correspondence between the parties in relation thereto;
(ii)The most recent claim and defences filed in the plaintiff’s separate claim for repairs to its unit;
(iii)The settlement agreement between the plaintiff and defendants in relation to its separate claim;
(b)The plaintiff’s alleged loss as a result of such exclusion from the complex claim, including:
(i)The extent of common property and the plaintiffs share thereof;
(ii)The extent of the defects, scope of repair and cost of repairing common property as a measure of loss to owners as assessed by the defendant body corporate;
(iv)Any alternative measures of loss to owners as assessed by the defendant body corporate;
in particular, the latest claim and defences in the complex claim and expert evidence filed in support by the body corporate and owners;
(c)The legal and expert costs of prosecuting and settling the complex claim and levies raised in the complex claim, and those paid or not paid by the plaintiff;
(d)The settlement agreement, subject to agreement by the parties to the complex claim; and
(e)The owners share of the legal and expert costs and settlement sum.
[15] Associate Judge Andrew reserved leave for Affordable to apply for a variation of the discovery order and/or further discovery orders once the tailored discovery order had been complied with, although noting that Affordable would need to establish a proper basis for any variation or additional orders sought.
[16] On 1 March 2021 Affordable applied for an order that the Body Corporate file and serve a supplementary affidavit of documents including the following categories of documents:
(a)All invoices relating to the Complex Claim including but not limited to any legal, expert and consultant invoices, together with evidence of time recording narrations and all reporting letters/emails.
(Category 1)
(b)All expert reports and advice relating to the Complex Claim including but not limited to any communications with engaged experts and consultants.
(Category 2)
(c)Any position papers exchanged prior to the mediation of the Complex Claim.
(Category 3)
(d)All evidence in chief filed in the Complex Claim by the defendants to the proceeding.
(Category 4)
(e)All evidence in chief filed in the Complex Claim by the unit owners. (Category 5)
(f)The documents described by the defendant at paragraph 7(c) of the defendant’s memorandum dated 17 August 2020 as reproduced below:
The legal and expert costs of prosecuting and settling the Complex Claim and levies raised in the Complex Claim, and those paid or not paid by the plaintiff.
(Category 6)
[17] On the same date, 1 March 2021, the Body Corporate applied for summary judgment and/or to strike out Affordable’s claim. Associate Judge Gardiner directed that the Body Corporate’s application was to be heard first and that the plaintiff’s application for further discovery would be allocated a fixture once the defendant’s application had been determined.4
[18] The plaintiff submitted that some of the documents sought on further discovery were relevant to the plaintiff’s opposition to the defendant’s summary judgment/ strike out application. Associate Judge Gardiner however concluded that it was not necessary for the application for further discovery to be determined first.
[19] Affordable says that the Body Corporate, in support of its summary judgment and strike out application, sought to rely on documents that are captured by Affordable’s current application for further discovery that had never been discovered.
[20]The Body Corporate does not appear to dispute this in its submissions.
[21]The Court declined the Body Corporate’s application on 23 November 2021.5
[22] Over seven months after the dismissal of the Body Corporate’s summary judgment claim, the Body Corporate provided a supplementary affidavit of documents dated 14 July 2022.
Legal principles applying to further discovery
[23] Affordable says either the further categories sought fall within the original tailored discovery order or should have been discovered in accordance with r 8.18 of the High Court Rules in any event.
[24]Affordable relies on r 8.18(1) of the High Court Rules which provides:
Each party against whom a discovery order is made has a continuing obligation to give discovery and offer inspection at all stages of the
4 Affordable Housing Limited v Body Corporate 396511 HC Tauranga CIV-2019-470-135,14 April 2021 (Minute of Associate Judge Gardiner).
5 Affordable Housing Ltd v Body Corporate 396511, above n 2.
proceeding, even if that party has filed and served an affidavit of documents that complies with this subpart.
[25]Rule 8.18(2) continues:
A party must discover a document if, in the course of complying with an order for tailored discovery, that party becomes aware of a document that is not required to be discovered under the order, but that—
(a)adversely affects that party’s own case; or
(b)adversely affects another party’s case; or
(c)supports another party’s case.
[26] Counsel for Affordable therefore submits that the tailored discovery order is a starting point. There are then two situations in which additional discovery is required:
(a)where further documents of the type referred to in the order come into possession of the parties; and
(b)where relevant documents which are not included in the order become apparent in the course of complying with the discovery order.
[27] In addition, the Court may vary the tailored discovery order pursuant to r 8.17. This rule provides a broad general power to vary discovery orders made where:
(a)compliance or attempted compliance with the terms of the order has revealed a need for a variation; or
(b)there has been a change of circumstances that justifies reconsideration.
[28]Rule 8.19 then provides:
8.19Order for particular discovery against party after proceeding commenced
If at any stage of the proceeding it appears to a Judge, from evidence or from the nature or circumstances of the case or from any document filed in the proceeding, that there are grounds for believing that a party has not discovered 1 or more documents or a group of documents that should have been discovered, the Judge may order that party—
(a)to file an affidavit stating—
(i)whether the documents are or have been in the party’s control; and
(ii)if they have been but are no longer in the party’s control, the party’s best knowledge and belief as to when the documents ceased to be in the party’s control and who now has control of them; and
(b)to serve the affidavit on the other party or parties; and
(c)if the documents are in the person’s control, to make those documents available for inspection, in accordance with rule 8.27, to the other party or parties.
[29] Counsel for Affordable relies on the four-stage process set out in McGechan on Procedure for applications under r 8.19:6
(a)Are the documents sought relevant, and if so, how important will they be (a criterion described as materiality in Robert Jones Holdings Ltd v McCullagh)?7
(b)Are there grounds for belief that the documents sought exist?
(c)Is discovery proportionate (balancing the time and costs of discovery against the potential value of discovery)?8
(d)Weighing and balancing these matters, and the Court’s discretion applying r 8.19, is an order appropriate?
[30] As stated, the defendant has now provided discovery of category 5 and the parties agree that the documents in category 3 are protected by privilege. I therefore ask these four questions in respect of the remaining categories of documents sought.
Categories 1 and 6
[31] I consider categories 1 and 6 together as the parties accept they overlap and that it is appropriate to consider them together. Category 1 includes:
All invoices relating to the complex claim including but not limited to any legal, expert and consultant invoices, together with evidence of time recording narrations and all reporting letters/emails.
6 Jessica Gorman and others McGechan on Procedure (online ed, Thomson Reuters) at [HR8.19.03]; referring to Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd [2015] NZHC 2760 at [14]. See also Lighter Quay Residents’ Society Inc v Waterfront Properties (2009) Ltd [2017] NZHC 818 at [16].
7 Robert Jones Holdings Ltd v McCullagh [2016] NZHC 2529.
8 Southland Building Society v Barlow Justice Ltd [2013] NZHC 1125 at [17].
[32]Category 6 includes:
The legal and expert costs of prosecuting and settling the complex claim and levies raised in the complex claim and those paid or not paid by the plaintiff.
[33] As set out above, the parties accept that these categories overlap to the extent that it is appropriate to consider them together. I note that category 6 was one of the categories included in the original tailored discovery order, set out in paragraph 7(c) of the defendant’s memorandum dated 17 August 2020 as referred to above.
[34] The defendant has filed a bundle of all of the expert and consultants’ invoices relating to the Complex Claim including the legal invoices. The remaining documents in category 1 and category 6 are documents accompanying these invoices such as cover letters, payment claims or other documents referred to in the invoices as detailing the work undertaken.
Are the documents sought relevant and, if so, how important would they be?
[35] The first question in an application under r 8.19 concerns the relevance of the documents sought. When determining relevance, it is the case of the party seeking discovery which is assumed to be true rather than that of the party from whom the discovery is sought.9
[36] The Body Corporate submits that Affordable is misguided as to relevance because the Body Corporate consulted the legal and expert team in respect of the building and plaintiff owners as a whole. The defendant says all costs were split on a utility interest basis between all owners and that neither the claim nor the services provided differentiated between unit and common property or individual owners.
[37] This response essentially says that Affordable will not find any breakdown of costs so the documents sought are not relevant. The fact that there is no breakdown is relevant to Affordable’s claim however because Affordable says it squarely raised this issue with the Body Corporate.
9 Kawarau Village Holdings Ltd v Yuen [2015] NZHC 1379 at [38].
[38] In addition, the plaintiff should not be expected to accept the Body Corporate’s affidavit evidence without being provided with the documents on which that evidence is based. Counsel for the plaintiff took me to several expert invoices where the Body Corporate says the invoices relate to remediation but the narration in fact suggests they relate to litigation.
[39] Without these documents the plaintiff may not be able to establish whether they have been inappropriately levied as alleged, so the documents are clearly relevant to the plaintiff’s claim. That is not just the case if the documents show a breakdown between costs incurred regarding common property and otherwise, or remediation and litigation. Even if they do not show or allow such breakdowns, this is still relevant to the plaintiff’s claim.
[40] The Body Corporate further submits that the additional discovery extends beyond discovery compiled for the building defect case. Affordable says however there is no evidence to support this and, more importantly, that the question of relevance to this proceeding must be the determining factor. Whilst the two proceedings are related, they are not the same.
[41] In my view, the documents are clearly relevant and appear important to the plaintiff’s case.
Are there grounds for the belief that the documents sought exist?
[42]There is no question that the documents exist.
Is discovery proportionate?
[43] There is no evidence in the defendant’s affidavits as to the volume of the documents outstanding in these categories, but counsel estimated during the hearing that if there were 500 pages of invoices for the experts and consultants plus a further 65 or so legal invoices, each of those may then have at least a couple of pages of documents providing time details, payment claims or reporting letters.
[44] Other than the estimate given by counsel, there is no evidence of how large the task will be.
[45] In terms of the time and costs of discovery as against the potential value of discovery, the documents are clearly relevant and, although the estimate given by counsel suggests there may be several thousand documents, there is no evidence that the documents will be difficult to access.
Weighing and balancing these matters and the Court’s discretion in applying r 8.19, is an order appropriate?
[46] Weighing the extent and burden of discovery against the relevance or materiality of the information that is likely to be contained in the documents discovered, I consider that an order for discovery of these documents is appropriate.
[47] The plaintiff is claiming approximately $1.1 million from the defendant and other than the volume of documents, the defendant has not relied on any difficulty in accessing or collating the documents. Counsel for the Body Corporate submits that even if all the invoices had been mischaracterised it would not significantly affect the plaintiff’s claim, but it is not possible to reach a final view on this without full argument and the benefit of discovery.
[48] Further, counsel for Affordable submits that if the further discovery is a time consuming and expensive task then that is something that the Body Corporate has brought upon itself. The plaintiff says the Body Corporate could not lawfully levy Affordable for the costs of prosecuting claims for the other individual unit owners and so this information ought to have been collected separately by the Body Corporate in the first place. Affordable submits that it raised this with the Body Corporate at the time.
[49] In these circumstances discovery of even potentially several thousand documents appears justified.
Category 2
[50]The documents sought in this category are:
All expert reports and advice relating to the complex claim including but not limited to any communications with engaged experts and consultants.
Are the documents sought relevant and, if so, how important would they be?
[51] Affordable says this category is relevant for similar reasons as for categories 1 and 6; that they are relevant to which aspects of the Complex Claim related to common property as compared to unit property and to whether the work carried out by the experts related to remediation or providing evidence in the litigation.
[52] The Body Corporate relies on the fact that Associate Judge Gardiner noted in her Minute of 14 April 202110 that Affordable had already attempted and failed to have all experts’ reports and advice included in tailored discovery and that these documents therefore do not fall within these categories. However, the question for this application is whether an order for particular discovery ought to be made, rather than whether the documents fell within the original categories of the discovery order, as documents which are relevant because they fall within r 8.18(2) of the High Court Rules are still required to be discovered even if they do not fall within the tailored discovery categories.
[53] For the same reasons as set out above in respect of categories 1 and 6, I consider the documents in category 2 are clearly relevant as they will either assist in the breakdowns of work carried out with respect to the Complex Claim between common property and unit property or remediation and litigation, or will show that there is no information that will assist in this breakdown and so allow approximations of these amounts if the plaintiff is successful in its claim.
Are there grounds for the belief that the documents exist?
[54]There is no question that the documents in category 2 exist.
Is discovery proportionate?
[55] The main ground for opposition to discovery of this category again appears to be that it would be disproportionate. The Body Corporate submits that the experts
10 Above n 4.
retained by the Body Corporate provided evidence in the form of briefs in the Complex Claim, where the experts’ positions on the defects in the building, the costs of repairs and diminution in value are set out and those briefs have been provided. But those briefs do not distinguish necessarily between unit and common property or assist in isolating the extent of the work done by experts in respect of remediation as compared to litigation. The background reports and advice may better assist in doing so.
[56] Counsel for the Body Corporate says that there is nothing behind the briefs that will give Affordable this information. The Body Corporate submits the correspondence with the experts is substantial as the Complex Claim was commenced in 2016 and was not resolved until May 2020 (by mediation), with the Body Corporate’s submissions listing nine different experts.
[57] Again, this is asking the plaintiff to accept the Body Corporate’s position without access to the base documents. It does appear that the documents in this category could however include many documents, arranging meetings and so forth, that may not assist. I discuss this further in undertaking the balancing exercise in the next question.
Weighing and balancing these matters, and the Court’s discretion applying r 8.19, is an order appropriate?
[58] Category 2 seeks “any communications” with the engaged experts. Difficulties may arise with limiting this category. For example, correspondence organising a meeting may reveal the purpose of a particular step taken. However, this category could be confined to “expert reports and advice” only together with “any correspondence with experts and consultants relevant to the breakdowns between common property and unit property or remediation and litigation work”.
[59] In addition, the safeguard of r 8.18(2) will still operate so any documents that the Body Corporate comes across that are adverse to its case, or that adversely affect or support Affordable’s case are required to be provided.
[60]I therefore include an order below on this slightly confined basis.
Category 4
[61] Category 4 includes all evidence in chief filed in the Complex Claim by the defendants to the proceeding.
[62] The Body Corporate opposed discovery of these documents on the basis that the briefs were served but never produced in Court and the position in relation to their confidentiality or otherwise was not known. The defendant drew an analogy with r 8.30 of the High Court Rules which protects documents discovered in a proceeding from being used for any other purpose.
[63] The plaintiff submits, however, that if it was intended for there to be a similar restriction in relation to briefs of evidence, the High Court Rules would expressly say so. The plaintiff and the defendant have been unable to find any cases discussing this issue.
[64]Rule 9.14(e) of the High Court Rules provides:
Nothing in this subpart … allows a brief, served under these rules, to be made available, before it is given in evidence, for use for another purpose or proceeding.
[65] I am only aware of one case that has referred to this section, Taylor v Attorney- General.11 In that case, the applicant, Mr Taylor, applied for leave to use excerpts from a brief of evidence prepared for trial in his autobiography which was going to be released prior to the trial. The Court held that leave to use these excerpts was required because of the operation of r 8.30(4) and r 9.14(e).12
[66] Rule 9.14(e) does not therefore exclude the discovery of briefs of evidence in another proceeding but requires leave to be given.
11 Taylor v Attorney-General [2021] NZHC 1546.
12 At [20].
[67] Associate Judge Johnston commented that r 9.14(e) “applies to the process of exchanging briefs of evidence of witnesses prior to trial. Whilst, in civil litigation, the parties are generally required to do this, at least until such time as the witness gives evidence in open court, briefs remain confidential”.13
[68] In Taylor leave was being sought to use excerpts from the briefs prior to trial, whereas here a discovery order is being sought for provision of copies of briefs served in another proceeding but never presented in court because the other proceedings settled. Although different circumstances, the principles listed by Associate Judge Johnston as relevant to determining leave are useful for considering whether an order ought to be made here, as the discovery application essentially amounts to an application for leave. The principles are:14
(a)The High Court — like all courts — has inherent power … to control the use that parties make of information obtained through the Court’s processes;
(b)Materially, for present purposes, the High Court Rules address such matters in r 8.30(4) and r 9.14(e).
(c)The Court may grant leave to a party to take a step otherwise proscribed by those rules.
(d)Invariably, it will be the party seeking such leave who will be the applicant. However, it is not obvious to me that the onus should necessarily fall on the applicant to satisfy the court that he, she or it should be granted leave. Historically, that onus lay on the party seeking to impose restrictions. A contemporary approach may be that notions of onus should not be allowed to get in the way of the fundamental task which is to have regard to all relevant considerations and reach a balanced conclusion about the appropriateness or otherwise of the step or steps being proposed…;
(e)At the most abstract level the balancing exercise will be informed by two overarching considerations… The question in any given case is likely to be whether the interests of open justice and freedom of speech must yield to the need to maintain the integrity of the court’s processes.
[69] As Associate Judge Johnston further noted each case will be intensely fact specific.15 The overriding consideration of open justice and freedom of speech was particularly relevant to Mr Taylor’s case but is not so relevant to this application. Here,
13 At [28].
14 At [36].
15 At [37].
the balancing exercise is instead between the relevance of the information included in the briefs to this proceeding and maintaining the integrity of the Court’s processes.
[70] The briefs of evidence by the Body Corporate and the unit owners were included in the original tailored discovery order and I understand have been provided to the plaintiff. The outstanding documents in this category are any further briefs of evidence served on behalf of the defendants to the Complex Claim.
[71] This category does not therefore raise issues of proportionality. The Body Corporate submits that these briefs are confidential, but confidentiality issues can be managed through the discovery process by claims to confidentiality being made and steps proposed for protecting any confidentiality.
[72] In the circumstances, I consider it is appropriate to make an order for tailored discovery of these documents, requiring the defendant to discover them. Rule 8.30 will apply to these documents once they are discovered in these proceedings and therefore they will not be able to be used outside of these proceedings once discovered (except again with the necessary leave). Confidentiality orders can protect the confidentiality of any material contained within the briefs. I note that I include in the directions below a direction for the parties to confer to attempt to reach agreement on the appropriate orders prior to confidentiality being claimed.
Result
[73]The plaintiff’s application for particular discovery is granted as follows:
(a)The defendant is to file and serve a supplementary affidavit of documents by 2 May 2023 including all documents falling within the following categories:
(i)Category 1;
(ii)Category 2, amended as follows:
All expert reports and advice relating to the complex claim together with any correspondence with experts and consultants relevant to the breakdowns between
common property and unit property, or remediation and litigation work.
(iii)Category 3 (privileged), to be recorded in Part 2 of the defendant’s affidavit;
(iv)Category 4, with parties to confer to reach agreement on any confidentiality orders necessary prior to confidentiality being claimed (and if agreement cannot be reached, to file and serve the affidavit of documents with the defendant’s proposed claims to confidentiality together with a joint memorandum with differences set out);
(v)Category 5 (already provided informally); and
(vi)Category 6.
Costs
[74] The plaintiff has largely succeeded and my preliminary view is that it is entitled to costs. I further consider that the documents sought were clearly relevant in the first place and so ought to have been discovered either because they fell within the tailored discovery order or r 8.18(2). I ask the parties to confer and only if costs are unable to be agreed to file memoranda of no more than five pages excluding schedules, on behalf of the plaintiff within 20 working days and the defendant a further 10 working days.
Associate Judge Sussock
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