Ballantyne Trustees Ltd v HFK Ltd
[2021] NZHC 388
•5 March 2021
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2015-409-000173
[2021] NZHC 388
BETWEEN BALLANTYNE TRUSTEES LIMITED and
S B KEUNG as trustees of the GBR Trust First Plaintiffs
AND
SENG BOU KEUNG
Second Plaintiff
AND
HFK LIMITED
First Defendant
AND
KEIRAN ANNE HORNE
Second Defendant
Hearing: 3 February 2021
(Submissions received 26 February 2021)
Appearances:
M J Tingey for Plaintiffs
M E Parker and J Eckford for First and Second Defendants
Judgment:
5 March 2021
JUDGMENT OF ASSOCIATE JUDGE PAULSEN
This judgment was delivered by me on 5 March 2021 at 11.00 am pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
BALLANTYNE TRUSTEES LTD v HFK LTD [2021] NZHC 388 [5 March 2021]
The background
[1]This judgment concerns applications by the plaintiffs that the defendants:
(a)provide further and better discovery; and
(b)make a further answer to interrogatories.
[2] I deal with each application separately below, but first it is necessary to provide some context.
[3] This litigation relates to events that occurred in 2009 but it was not commenced until March 2015. It has not been progressed promptly or efficiently and for a lengthy period it was stayed. There have been many interlocutory skirmishes and non- compliance with timetabling orders. The parties should be working to a pre-trial timetable. The close of pleadings date has passed and the plaintiffs’ briefs of evidence are to be exchanged by 5 March 2021 with the defendants’ briefs required by 23 April 2021. The trial is scheduled to commence on 21 June 2021.
[4] The plaintiffs are shareholders in Goose Bay Ranch Holdings Ltd (in liq) (GBRH) and wholly owned subsidiaries (the companies). The second defendant (Ms Horne) was a chartered accountant employed by the first defendant (HFK). During 2009, Ms Horne and David Crichton were appointed interim liquidators and then liquidators of the companies. They had high profiles as insolvency practitioners. Mr Crichton has since retired and Ms Horne no longer practises as a liquidator. She has sworn an affidavit stating she now has no connection with HFK. HFK no longer carries on business. It merged its practice with another accounting firm in 2016 to form Nexia Christchurch Ltd. It owes its continued existence to the plaintiffs’ pursuit of this litigation against it.
[5] The plaintiffs’ latest pleading is an amended statement of claim of 25 November 2015. It contains two extant causes of action.1 The plaintiffs allege Ms Horne and HFK breached various duties owed to the companies and were
1 The plaintiffs were refused leave to pursue a third cause of action under s 284 Companies Act 1993 in Ballantyne Trustees Ltd v HFK Ltd [2016] NZHC 917.
negligent in the manner in which the interim liquidations and liquidations were conducted. The alleged breaches of duty are inadequately particularised in the amended statement of claim. Mr Tingey acknowledges a further amended statement of claim will be required. The quantum of damages is not pleaded but Mr Tingey advises it will be around $23,500,000.
Discovery
[6] Standard discovery was ordered following a case management conference on 5 February 2016. The discovery order was:
The parties shall file verified lists of documents upon a standard discovery basis within 30 working days after the filing of the defendants’ statement of defence, the Listing and Exchange Protocol in Part 2 of Schedule 9 of the High Court Rules applying.
[7] Two affidavits of documents have been sworn by Ms Horne on behalf of the defendants. The first and substantive affidavit of documents is dated 28 April 2016. A supplementary affidavit of documents is dated 23 September 2020. In both instances Ms Horne describes the steps taken to fulfil the defendants’ discovery obligations as:
I understand the obligations imposed by the Discovery Order.
In order to fulfil those obligations, I have diligently searched for all documents required to be discovered under the Discovery Order
[8] The plaintiffs make several complaints concerning the defendants’ discovery. Fundamentally, they say the defendants have failed to diligently search for documents required to be discovered and repeatedly failed to provide satisfactory responses to their concerns.
[9] The plaintiffs seek orders that the defendants review their discovery and file an affidavit stating:
(a)that their discovery obligations have been met;
(b)whether documents of particular descriptions are or have been in the defendants’ control;
(c)if such documents are no longer in the defendants’ control, their best knowledge and belief as to when they ceased to be in their control and who now has control of them; and
(d)that the defendants provide electronic discovery afresh with properly numbered and described documents.
[10]The application is opposed.
The High Court Rules 2016 – disclosure of documents
[11] The discovery order required the parties to disclose documents that are in their control and that are:2
(a)documents on which the party relies; or
(b)documents that adversely affect that party’s own case; or
(c)documents that adversely affect another party’s case; or
(d)documents that support another party’s case.
[12] Standard discovery only requires disclosure of documents of actual and direct relevance.3 Under r 8.2, parties must cooperate to ensure discovery and inspection are proportionate and facilitated by agreement on practical arrangements. The obligation to cooperate falls on both parties.4 It is reflected in other rules and in the listing and exchange protocol.5 Counsel should assess the categories and methods for locating documents,6 and assess and discuss whether estimated discovery costs are proportionate to the subject matter of the proceeding.7
2 High Court Rules 2016, r 8.7.
3 Pyne Gould Corp Ltd v Bath Street Capital Ltd [2020] NZHC 1247 at [13].
4 Minister of Education v James Hardie New Zealand [2020] NZHC 82 at [34].
5 High Court Rules, sch 9, pt 2.
6 Sch 9 cls 2(a) and 3(2)(ii).
7 Sch 9 cl 1(d).
[13] Under r 8.13, the solicitor who works for any party in a proceeding must take reasonable care to ensure that the party understands their obligations under a discovery order and fulfils those obligations. Related to this, r 8.14 requires that a party must make a reasonable search for documents within the scope of a discovery order. Under r 8.14(2), what amounts to a reasonable search will depend on the circumstances including the following factors;
(a)the nature and complexity of the proceeding;
(b)the number of documents involved;
(c)the cost of retrieving documents;
(d)the significance of any document likely to be found; and
(e)the need for discovery to be proportionate to the subject matter of the proceeding
[14] Rule 18.15 sets out the standard requirements for affidavits of documents. Most relevant in this case, a party must:
…
(c)give particulars of the steps taken to fulfil those obligations; and
(d)state the categories or classes of documents that have not been searched, and the reason or reasons for not searching them; and
(e)list or otherwise identify documents required to be discovered under the order in a schedule that complies with rule 8.16 and Part 2 of Schedule 9.
…
The principles in Assa Abloy
[15]The plaintiffs apply for further and better discovery under r 8.19. It 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.
[16] The key issue in applications under r 8.19 is whether there are grounds for believing a party has not discovered documents that should have been discovered. The court generally adopts the following four-stage approach as outlined in Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd:8
(a)Are the documents sought relevant, and if so how important will they be?
(b)Are there grounds for belief that the documents sought exist? This will often be a matter of inference. How strong is that evidence?
(c)Is discovery proportionate, assessing proportionality in accordance with Part 1 of the Discovery Checklist in the High Court Rules?
(d)Weighing and balancing these matters, in the Court’s discretion applying r 8.19, is an order appropriate?
8 Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd [2015] NZHC 2760 at [14].
Relevance and importance
[17] The plaintiffs seek discovery of 11 categories of documents. They are attached as schedule A.
[18] The evidence in support of the application is primarily set out in an affidavit of the plaintiff, Seng Bou Keung (Mr Keung). It appears from correspondence attached to his affidavit the first request for further discovery of documents within these categories was made in an email of 14 July 2020 by the plaintiffs’ solicitors, Ronald W Angland & Son, to the defendants’ solicitors, Parker Cowan. Parker Cowan responded in a letter of 21 August 2020 dealing with the plaintiffs’ individual discovery requests and stating that all communications between the defendants and relevant parties had been discovered.
[19] Mr Keung says these categories of documents “relating to the relationship between the defendants and several other people or entities” are relevant to the claim as they may evidence the basis of the defendants’ alleged bias, conflict of interest or improper purpose when acting as interim liquidators or liquidators of the companies. He also says, more generally, the plaintiffs consider any documents that narrate the defendants’ conduct before and during their appointments as interim liquidators or liquidators, or that evidence the defendants’ knowledge of the business operations or dealings of the companies, are relevant to the purpose for the defendants’ actions, whether they acted reasonably, whether they had a conflict of interest and whether they made all necessary enquiries before acting. Mr Keung does not, however, provide any sound basis for a belief that documents within the categories sought exist but have not been disclosed.
[20] By way of reply, Ms Horne says in respect of 10 of the 11 categories, “all such documents were disclosed in my first affidavit of documents.” In respect of one category of document, Ms Horne says the documents are irrelevant but have been disclosed.
[21] Mr Parker argues the documents sought are not relevant to anything that is raised in the amended statement of claim. He is critical of the plaintiffs’ pleadings and
emphasises the general absence of particulars supporting allegations in the amended statement of claim. He submits this application is a fishing expedition.
[22] I am unable to accept Mr Parker’s submission as to relevance of documents sought. The relevance of each of the categories of documents (with one qualification) must be taken, at least inferentially, to have been acknowledged by Ms Horne in her affidavit. Furthermore, in the written submissions, Mr Parker states the documents sought by the plaintiffs, if in existence, would be relevant to the matters in dispute and that stage one in the Assa Abloy test is fulfilled.
Are there grounds for belief that the documents sought exist?
[23] Mr Tingey submits the documents sought can reasonably be expected to have been maintained as liquidators’ records, as required by s 256 of the Companies Act 1993. Such records would, he says, extend beyond Ms Horne’s hardcopy file and include old or archived emails or other documents stored on computer hard drives. As there has been disclosure of documents in all 11 categories, Mr Tingey’s submission does not advance the plaintiffs’ case that the defendants’ discovery is incomplete. In this regard, Parker Cowan’s letter of 21 August 2020 (attached to Mr Keung’s affidavit) notes that a search of the defendants’ discovery affidavit brings up many references to documents in the identified categories.
[24] An affidavit of Rekha Ashwin Patel was filed for the plaintiffs shortly before the hearing. It concerns requests for documents and information made on the plaintiffs’ behalf to the New Zealand Police and the Ministry of Business, Innovation and Employment (MBIE). Nothing in the responses to those requests suggests to me the defendants’ discovery is incomplete. I understand the evidence of Ms Patel that documents obtained from MBIE had not been discovered by the defendants is now accepted as being incorrect.
[25] The plaintiffs’ identified nine instances where they contend documents are obviously missing from the defendants’ discovery. I understand these are advanced on the basis an inference can be drawn that documents in the 11 categories are also
missing, as well as examples of the defendants’ inadequate responses to discovery concerns raised by the plaintiffs.
[26] The plaintiffs have now accepted Ms Horne’s explanations in respect of three of the nine matters. In respect of the remaining matters, Ms Horne’s responses do lend weight to the plaintiffs’ position that the defendants’ search for documents is inadequate and also to a related concern that the documents disclosed have not been reviewed for relevance. In this later context the defendants have disclosed more than 6,000 documents (more than 200,000 pages) many of which the plaintiffs consider are duplicates or irrelevant.
[27] Two examples will suffice. In relation to the document identified as KH319 in the defendants’ discovery, Ms Horne says she cannot recall what the email refers to and there is nothing to suggest she has made an attempt to identify its relevance. In relation to document KH608, Ms Horne says she can see the hard copy file is missing correspondence with a Mr Woosley but it appears she has not searched for missing documents. If the documents are missing they should be searched for and, if lost, Ms Horne should provide an explanation.
[28] The heft of the plaintiffs’ concern relates to the defendants’ failure to provide meaningful particulars of the steps taken to fulfil their discovery obligations. Mr Tingey submits it is not possible for the plaintiffs to make an assessment of what the defendants understand the issues in this case to be; how relevance has been determined; which sources of documents have been searched; how the searches have been undertaken and, whether any sources remain unsearched. He argues, the plaintiffs cannot be expected to discern instances where documents that should be discovered are missing.
[29] Mr Tingey also notes Ms Horne discovered new documents in the defendants’ supplementary affidavit of documents without any context or explanation as to why they had not been discovered earlier. He submits, the defendants’ assertions that discovery has been completed are meaningless.
[30] Whether the defendants have failed to comply with their obligation to make a reasonable search for documents within the standard discovery order is an overarching consideration. If the defendants have not conducted a proper search they will need to do so. Once it is established that a proper search has been undertaken it should resolve the plaintiffs’ application for further discovery. 9
[31] The defendants’ affidavits of documents contain only conclusory statements that Ms Horne has “diligently searched for all documents required to be discovered”. That does not comply with the requirement in r 8.15(2)(c) that the affidavit of documents give particulars of steps taken by a party to fulfil its obligations which include, under r 8.14(1), to make a reasonable search for documents within the scope of the discovery order.
[32] Faced with the plaintiffs’ application for further discovery, Ms Horne swore an affidavit which states:
All electronic and hardcopy files relating to the liquidations and interim liquidations of the four relevant companies were transferred to Parker Cowan in compliance with my discovery obligations.
At the time of the interim and full liquidations of those companies I operated very substantially with hardcopy files; however, I did not print out all documents to place them on the hardcopy files, particularly if, for example, an email contained an attachment that was already on file. This would explain why there may be some hardcopy emails that do not have the relevant attachments printed out.
I am no longer practising as a liquidator and have no connection with [the first defendant]. In 2016 [the first defendant] merged its practice with another accounting firm to form Nexia Christchurch Ltd.
[33] This does not adequately address the question whether a reasonable search has been undertaken. Ms Horne’s statement that all electronic and hardcopy files were transferred to the defendants’ solicitors is again conclusory. Her practice of maintaining and working from a hardcopy file emphasises the need for a thorough search for electronic documents. Her present lack of connection to HFK raises issues about what steps it has taken to search for documents independently of any steps she has taken.
9 Pyne Gould Corp Ltd v Bath Street Capital Ltd, above n 3, at [23].
[34] Broadly, in a case of this size and complexity it would be expected that there would be evidence on behalf of all parties of the following matters:
(a)the information technology (IT) assistance (if any) obtained to undertake the discovery process;
(b)the steps taken to identify individuals/entities likely to either have relevant documents in their control or to know where they were likely located;
(c)the enquiries made of such individuals/entities;
(d)the sources of documents identified as containing relevant documents, such as paper files, electronic files, databases and communication devices, and
(e)the steps taken to locate relevant documents within those sources including, in the case of electronic documents, appropriate keyword searches and other automated searches techniques.
[35] Recently, in Pyne Gould Corp Ltd v Bath Street Capital Ltd, Katz J considered whether Pyne Gould had made a reasonable search for documents within the scope of a tailored discovery order.10 There was evidence of steps taken by Pyne Gould including identification of personnel who conducted searches, details of files that were searched and keyword searches that were utilised. Despite this, Bath Street objected that the searches undertaken were high-level and not adequate.
[36] Katz J noted what is required for a reasonable search is context-specific. As the case before her was a major and complex commercial proceeding involving a claim for damages of $22 million (and a significant but unquantified counterclaim for damages), a reasonable and proportionate search required the parties to make significant efforts to locate documents within the tailored discovery categories. Her Honour said:
10 At [23].
[32] In my view, the process summarised at [25] above fell significantly short of what was required for a reasonable and proportionate search for documents in a major commercial proceeding such as this. Appropriate keyword searches should have been conducted across all relevant hard drives or other repositories of electronic documents (including the hard drives associated with all persons who may have created, received or accessed relevant documents). If Pyne Gould did not have internal IT experts with the necessary forensic computing skills, external consultants should have been engaged. The key words and phrases used for searching should ideally have been agreed between the parties. They should have been comprehensive enough to capture the majority of potentially relevant documents.
[37]Katz J relevantly also said:11
[31] If electronic (or other) documents have been “lost” due to the passage of time, an explanation should be provided for this. If documents are said to be no longer recoverable the relevant party must explain why they are not recoverable and what steps have been taken to recover them.
[38] There are parallels to be drawn between Pyne Gould and this case. Like Pyne Gould, this is complex commercial litigation seeking substantial damages and the defendants have not provided evidence that a satisfactory search has been undertaken for documents required to be disclosed by the discovery order. In Pyne Gould, Katz J decided that the appropriate way forward was for Pyne Gould to conduct a further, proper and more comprehensive search.12 That is the proper approach in this case also.
Is discovery proportionate?
[39] Proportionality does not yet arise as an issue. Proportionality is the key priority in determining what is a reasonable search. The defendants will be required to identify what methods and strategies have been taken to locate relevant documents and what further steps will be taken. In the event of disagreement between the parties as to what amounts to a reasonable search, the matter will be determined by the court.
The court’s discretion
[40]The defendants should be required to comply with their obligations under rr
8.14 and 8.15 and make a reasonable search for documents in the 11 categories. As
11 Footnote omitted.
12 At [33].
the defendants contend they have discovered all relevant documents, the costs and time involved in undertaking such an exercise should not be significant.
The orders that will be made
[41] The orders I make in [75] below will deal with the plaintiffs’ application for further discovery except in respect to [9](d) above. I am not prepared to make an order as sought in [9](d). I agree with Mr Parker that such an order would be extraordinary. The defendants substantially provided discovery in 2016. Objections to how documents were labelled and numbered should have been taken then. Since then the plaintiffs have inspected the defendants’ documents and there has been much correspondence between the parties’ respective lawyers where the defendants’ counsel have constructively responded to the plaintiffs’ concerns. The plaintiffs have plainly coped with any listing and labelling errors in the defendants’ discovery. Furthermore, the errors have been made on both sides in the discovery process. To impose such a burden solely on the defendants at this late stage of the proceeding is both unnecessary and disproportionate.
Interrogatories
[42] On 7 September 2020, the plaintiffs served on the defendants a notice to answer interrogatories under r 8.34 of the High Court Rules. The defendants responded with an affidavit of Ms Horne dated 30 September 2020. The plaintiffs consider the defendants’ responses were, in some respects, insufficient. They apply for orders the defendants answer the interrogatories. The defendants object to provide further answers to the interrogatories.
The High Court Rules
[43] A Judge has broad powers under the High Court Rules when ruling on contested interrogatories. The Judge may order that the answers are not required,13 require the applicant to specify on what grounds they object to answer the interrogatories, and determine the sufficiency of an objection.14
13 High Court Rules, r 8.36(1)(a).
14 Rule 8.40(3).
[44] Under r 8.38, a Judge may require a party to answer interrogatories. The interrogatories must relate to matters in question in the proceeding and the Judge must be satisfied the order is necessary at the time when it is made.
[45]Rules 8.38 and 8.39 of the High Court Rules provide:
8.38Order to answer
(1)A Judge may, at any stage of any proceeding, order any party to file and serve on any other party (whether the interrogating party or not) a statement prepared in accordance with rule 8.39 in answer to interrogatories specified or referred to in the order.
(2)The interrogatories must relate to matters in question in the proceeding.
(3)The order may require the statement to be verified by affidavit.
(4)The Judge must not make an order under subclause (1) unless satisfied that the order is necessary at the time when it is made.
8.39Contents of statement
(1)A statement in answer to interrogatories must, unless a Judge otherwise orders, comply with this rule.
(2)A statement in answer to interrogatories must deal with each interrogatory specifically, either—
(a)by answering the substance of the interrogatory without evasion; or
(b)by objecting to answer the interrogatory on 1 or more of the grounds mentioned in rule 8.40(1) and briefly stating the facts on which the objection is based.
(3)The statement must set out above or opposite to each answer or objection the interrogatory to which it relates.
[46] A party served with interrogatories has a limited entitlement to object to providing answers. Rule 8.40 relevantly provides:
8.40Objection to answer
(1)A party may object to answer an interrogatory on the following grounds only:
(a)that the interrogatory does not relate to a matter in question between the parties involved in the interrogatories:
(b)that the interrogatory is vexatious or oppressive:
(c)that the information sought is privileged:
(d)that the sole object of the interrogatory is to ascertain the names of witnesses.
(2)It is not a sufficient objection that the answer to an interrogatory will determine a substantial issue in the proceeding.
…
(4)If the Judge determines that the objection is not sufficient, the application is not entitled to object to answer the interrogatory.
[47]Rule 8.42 provides:
8.42Insufficient answer
If a party fails to answer an interrogatory sufficiently, a Judge may, in addition to acting under rule 7.48,—
(a)if the party has made an insufficient answer, order the party to make a further answer verified by affidavit in accordance with rule 8.38; or
(b)order the party, or any of the persons mentioned in rule 8.41(1)(b) to (d), as the case requires, to attend to be orally examined.
[48] In the case of a corporation, under r 8.41(1)(c), an affidavit on its behalf may be made by a person who meets the requirements of r 9.82. Rule 9.82(1)(c) allows an affidavit on behalf of a corporation to be made by a person who knows the relevant facts and is authorised to make the affidavit.
General observations
[49] I take as a correct and useful summary of the relevant law the Court of Appeal’s observations in Todd Pohokura Ltd v Shell Exploration Ltd, as follows:15
[14] It is appropriate to summarise briefly the nature, purpose and permissible scope of interrogatories. An interrogatory is a question asked before trial for the purpose of eliciting an answer on oath or affirmation which is admissible in evidence at trial. Like all questions, it must be directed towards advancing one side’s case or damaging the other’s case. It must accordingly be relevant to an issue raised on the pleadings or a fact in dispute for determination.
15 Todd Pohokura Ltd v Shell Exploration NZ Ltd [2009] NZCA 561.
[15] An interrogatory must also, like a question in cross-examination, be precise and unequivocal, and amenable to a direct and meaningful answer from information within the knowledge of or reasonably available to the person required to answer. It must not place unnecessary or burdensome obligations on the interrogated party, or be prolix. And its purpose must not be to search or probe on the speculative basis that an answer may prove relevant (colloquially known as fishing). A question which offends these elements will fall within the general category of oppressiveness.
[16] An interrogatory is an exception to the settled manner of adducing evidence and in particular to a defendant’s right not to call evidence at trial. Accordingly the Court must be satisfied that the interrogatory is necessary where an application to issue interrogatories is opposed: r 8.5 High Court Rules. A material consideration is whether briefs of evidence will be given by the party to be interrogated. Moreover, an interrogatory is not to be confused with a request for further particulars.
[50] Ms Horne has purported to answer the interrogatories for herself and on HFK’s behalf. She has not complied with the requirements of r 8.41(1)(c) in that there is nothing to establish that she had authority on behalf of HFK to do so, nor does she state what, if any, enquiries she has made to prepare answers on its behalf.16 This is not a mere technicality, particularly when she has stated she has no connection with HFK. This brings into sharp relief the most common of the plaintiffs’ complaints that Ms Horne has not made suitable enquiries or answered the interrogatories to the best of her ability.
[51] In Stanfield Properties Ltd v National Westminster Bank plc, Megarry V-C said:17
A director or liquidator who answers that he does not know is not answering the question; for the question is what the company knows, not merely what the director or liquidator knows. The person answering the interrogatories is accordingly bound to make all reasonable inquiries which are likely to reveal, or may reveal, what is known to the company. In order to show that this has been done, it is obviously desirable that the answers should include some statement which shows that the person swearing the answers has applied his mind to this duty and has attempted to discharge it. This, however, is all that I think is required. I do not think that there is any duty to set out the details of the inquiries made, giving the names and addresses of all persons questioned, and specifying what questions were asked, and so on. If the answers do not at least state in general terms that the person swearing to them has made diligent inquiries of all officers, servants and agents of the company who might reasonably be expected to have some knowledge relevant to the questions, the
16 Manawatu-Wanganui Regional Council v Easton Agricultural Ltd [2013] NZHC 209 at [21].
17 Stanfield Properties Ltd v National Westminster Bank plc [1983] 2 All ER 249 (Ch) at 251 cited in Fletcher Challenge Ltd v American Home Assurance Co Ltd (1987) 1 PRNZ 684 (HC) and Wright v Attorney-General [2021] NZHC 18 at [24].
party administering the interrogatories may justifiably question whether the company has discharged its obligations in answering the questions. In particular, if any person is an obvious source of knowledge, he must be questioned. If he is not, the company should say why.
[52] I am not satisfied that Ms Horne was entitled to answer the interrogatories on behalf of HFK. Ordinarily it could be expected that HFK would now be required to answer the interrogatories but before ordering that I will consider each of the interrogatories and the objections that have been raised to them. This is because, for reasons that follow, I consider the defendants should not be required to answer several of the interrogatories because they are oppressive and/or unnecessary.
[53] Importantly, I do not accept Mr Tingey’s submission that the interrogatories have been drafted to “minimise any ambiguity about the exact scope of the information sought”. Some of the interrogatories are poorly crafted, compound questions that place an unacceptable burden on the defendants at a late stage of the proceeding and are not amenable to a meaningful response. Anticipating this possibility, Mr Tingey submitted that in the event any interrogatory was worded so widely as to be considered oppressive, rather than uphold an objection to it, I should recast the interrogatory within satisfactory limits. I disagree. I do not consider it is for the Court to redraft objectionable interrogatories.18
The interrogatories and the answers
[54] The interrogatories in question and the responses to them are set out in the attached Schedule B.
Interrogatories 6(f) and (g)
[55] The first two interrogatories concern the relationship between the defendants and members of the Koulanov family. The plaintiffs plead that Ms Horne should not have accepted appointment as interim liquidator or liquidator of the companies when she had provided forensic and accountancy services to GBRI, a company associated with Grigori Koulanov, in respect to GBRI’s involvement with the companies. GBRI
18 Stephenson v Jones [2015] NZHC 1455; Todd v Pokokura Ltd v Shell Exploration Ltd, above n 15, at [23]; Shore v Thomas [1949] NZLR 690 (HC).
was a shareholder in GBRH and the entity that applied to liquidate the companies. The interrogatories are said to be relevant to clarify the timing, nature and scope of any relationships that gave rise to the alleged conflict of interest or caused the defendants to act with bias or improper purpose contrary to the plaintiffs’ interests.
[56] Interrogatory 6(f) is oppressive. Many years have passed since the events in question. The interrogatories are administered at a very late stage and there is no reason they could not have been administered earlier. With the passing of time, HFK no longer carries on business. At relevant times it had around 50 employees. The interrogatory, on its face, requires the defendants to identify and make enquiries not only of all former employees but also any other person “engaged” by HFK. It is not clear what that means but could extend to any agents or contractors of HFK. Furthermore, the terms “any other person engaged”, “any personal relationship” and “any member of the Koulanov family” are imprecise and not amenable to a direct and meaningful answer. It would be unfair to expect the defendants to make extensive enquiries in an attempt to answer this interrogatory when they should be focused on preparing for trial. The task required of the defendants to answer the interrogatory is highly disproportionate and unreasonable.19
[57] Interrogatory 6(g) differs from interrogatory 6(f) only by removing Grigori Koulanov from the set of members of the Koulanov family. For the same reasons, this interrogatory is oppressive.
Interrogatories 6(h), 6(j), 6(l), 6(n), 6(p), 6(q) and 6(r)
[58] The next seven interrogatories concern the relationship between the defendants and the law firm, Buddle Findlay. Buddle Findlay acted for GBRI and Mr Grigori Koulanov. The plaintiffs submit the relationships between lawyers at Buddle Findlay and the defendants are relevant to whether the defendants acted with bias, in conflict of interest or for improper purpose. There is no such allegation in the amended statement of claim.
19 Avon Studios Ltd v Scott [1951] NZLR 546 (HC); Elston v State Services Commission (No 2)
[1979] 1 NZLR 210 (HC) at 215.
[59] In relation to interrogatories 6(h), 6(j), 6(l) and 6(n), an answer to an interrogatory must be specific and substantial. A specific interrogatory requires a specific answer. If it is not possible to answer with precision a proper attempt should be made to provide the answer as accurately as possible.20 Ms Horne can be more precise as to when she met lawyers at Buddle Findlay. Her answers also appear oblique. It is not clear whether Ms Horne is saying she knew Mr Russell for all 25 years that she practised as an accountant in Christchurch or some lesser period. Furthermore, the fact that Ms Dunningham was appointed a Judge does not bear on the question asked. Ms Horne could have made enquiries of the lawyers involved to refresh her memory but there is no suggestion she has done so.21 Further answers should be provided to these interrogatories.
[60] Interrogatory 6(p) is in two parts. As to the first part, Ms Horne has answered the question whether lawyers at Buddle Findlay referred work to HFK. That is a matter I consider within her personal knowledge. She has not answered whether Buddle Findlay referred work to her personally and should do so.
[61] The second part of the interrogatory is oppressive and unnecessary. There is no pleading in the amended statement of claim that expressly relates to Buddle Findlay. The interrogatory, as worded, would require the defendants to identify every matter upon which HFK was engaged upon a referral from Buddle Findlay. There may have been many such matters. The defendants are then expected to identify on each file the work performed, when it was performed, the roles played by each of the named lawyers and, the fees rendered for the work regardless of whether the referral or the work undertaken has any connection or relevance to this litigation. That would be an entirely unnecessary and pointless exercise. It would also be unduly burdensome at such a late stage of the proceeding.
[62] Interrogatory 6(q) is also in two parts. As to the first part, Ms Horne has stated HFK did not act for Buddle Findlay but it is not clear to me that is a matter within her personal knowledge. She has not answered whether she ever acted for Buddle Findlay,
20 Andrew Beck and others (eds) McGechan on Procedure (online ed, Thomson Reuters) at [HR 8.39.01].
21 Sellman v Slater [2018] NZHC 3057 at [56]; citing Crusader Meats New Zealand Ltd v New Zealand Meat Board HC Wellington CIV 2004-485-2147, 13 May 2008 at [24].
although I expect that was the intent of her answer. A further answer should be provided to this interrogatory to that extent.
[63] As to the second part of the interrogatory, there is nothing before me to suggest that if HFK or Ms Horne was ever instructed to act for Buddle Findlay it was in relation to any matter connected to or of relevance to this litigation. The second part of the interrogatory is unnecessary and need not be answered.
[64] Interrogatory 6(r) is oppressive and so widely drafted that it is incapable of a meaningful response. It repeats the objectionable formula “any person employed or instructed by HFK”. It purports to relate to any communication upon any topic regarding the companies whether or not relevant to this litigation. The word “communicate” is capable of a very wide meaning and the plaintiffs, by their notice to the defendants to answer interrogatories, make it clear that it is to be regarded as having its widest possible meaning including written communications (hardcopy and electronic), conversations (in person or otherwise), and indirect communications which could extend to gestures, signs or signals of any kind.22 The defendants cannot be expected to answer such an interrogatory at such a late stage.
Interrogatories 6(s), 6(u), and 6(v)
[65] These interrogatories are concerned with the relationship between the defendants and the accountancy firm PricewaterhouseCoopers. The plaintiffs contend PricewaterhouseCoopers acted for both GBRI and GBRH prior to the liquidations and the answers to the interrogatories could yield relevant evidence in relation to the defendants acting with bias, conflict of interest or improper purpose. There is no specific pleading concerning PricewaterhouseCoopers.
[66] As to interrogatory 6(s), Ms Horne’s answer is ambiguous as to whether she has ever met Mr Perrett. Her answer should be specific as to if and when she met Mr Perrett and state the basis for her belief. A further answer should be provided to this interrogatory.
22 See discussion of the meaning of communication under s 57(1) of the Evidence Act 2006 in New Zealand Institute of Chartered Accountants v Clarke [2009] 3 NZLR 264 (HC) at [28]-[29].
[67] In relation to interrogatory 6(u), I am not satisfied that Ms Horne has personal knowledge whether Mr Perrett referred work to HFK. She also does not state if Mr Perrett referred her work personally. A further answer should be provided to this interrogatory to that extent.
[68] However, neither Ms Horne nor HFK is required to respond to the second part of the interrogatory. There is nothing before me to suggest that the detail of work referred to either Ms Horne or HFK by Mr Perrett has any connection or relevance to the matters arising in this litigation and the interrogatory is both oppressive and unnecessary.
[69] As to interrogatory 6(v), Ms Horne’s answer is not satisfactory. The instructions from Buddle Findlay she refers to in paragraph (b) and (c) of her answer were received prior to 27 March 2009. She does not therefore state if any communications were received as of 27 March 2009. Ms Horne should provide a further answer to this interrogatory. As far as HFK is concerned, the interrogatory is oppressive for the same reasons already given.
Interrogatories 6(w) and 6(x)
[70] These interrogatories are concerned with the appointment of Ms Horne and Mr Crichton as liquidators and their conduct of the liquidations. The plaintiffs contended they are relevant to whether the defendants carried out prudent enquiries or, conversely, enquiries that were improper in scope and whether the defendants acted in good faith. They focus on a judgment delivered by Associate Judge Gendall. GBRI applied to the High Court to have Ms Horne and Mr Crichton appointed as interim liquidators of the companies on 27 March 2009. The application was granted on 31 March 2009. Later, in a judgment of 27 November 2009, Associate Judge Gendall held that GBRI had no standing to bring liquidation applications in respect of GBRH and two associated companies.
[71] As to interrogatory 6(w), Ms Horne has stated she had no knowledge or suspicion that GBRI did not have standing to apply for the appointment of liquidators to the companies. Her answer is satisfactory. As far as HFK is concerned I consider the interrogatory oppressive for reasons already canvassed. HFK cannot reasonably
be expected to enquire and answer as to the state of knowledge of all persons employed by it and at such a late stage of the proceeding.
[72] I consider interrogatory 6(x) is not necessary and is oppressive for several reasons. First, the defendants cannot be expected to make enquiries and provide an answer for any employees of HFK and at such a late stage. Second, during the period 31 March 2009 to 27 November 2009, Ms Horne and Mr Crichton were acting as the interim liquidators of the associated companies. It is to be expected that enquiries would be made concerning the associated companies, but the interrogatory is indiscriminate in that it is directed to all enquiries regardless of relevance or subject- matter. If the plaintiffs wish to learn whether enquiries were or were not made about specific matters, then the interrogatory should be directed to them. Further, the defendants have provided discovery of their files in relation to the conduct of the interim liquidations and Ms Horne has stated enquiries that were made have been disclosed in discovery. As Associate Judge Gendall noted in Crusader Meats New Zealand Ltd v New Zealand Meat Board where the inspection of discovered documents is likely to lead to answers with relatively little effort, answers to interrogatories which rely on this may well be sufficient.23
Interrogatories 6(y), (z), (aa), (bb), (dd) and (ee)
[73] These interrogatories are all in very similar format and concern whether the defendants made enquiries with government bodies, residents of Goose Bay, banks and the Police regarding the companies or the plaintiffs. The plaintiffs say the interrogatories are relevant to whether the defendants made enquiries that were improper or failed to make enquiries that would have been prudent.
[74] These interrogatories are oppressive and are not necessary. The defendants cannot be expected to make enquiries and provide an answer for all employees of HFK and at such a late stage. The interrogatories are indiscriminate in that they are directed at all communications between the defendants and the several named entities without regard to relevance or subject matter. The defendants have provided discovery of their files in relation to the conduct of the liquidations and Ms Horne has stated all relevant
23 Crusader Meats New Zealand Ltd v New Zealand Meat Board, above n 21, at [55].
communications have been disclosed in discovery. Although the plaintiffs consider the defendants’ discovery is inadequate, the orders I am making will require the defendants to search for and discover any written communications between them and the parties, the subject of these interrogatories.
Result
[75]In relation to the plaintiffs’ discovery application, the orders that I make are:
(a)the defendants are to file an affidavit within 7 days stating what steps were taken to search for documents in the 11 discovery categories identified in the plaintiffs’ application;
(b)in so far as the plaintiffs consider such search to be inadequate, counsel are to endeavour to reach agreement regarding an appropriate search methodology in light of my findings and take into account the matters set out in schedule 9 of the High Court Rules;
(c)in the event agreement is reached, a joint memorandum, outlining the agreed search methodology and the proposed timetable for the completion of further discovery and inspection, is to be filed by 19 March 2021;
(d)failing agreement, counsel are to file separate memoranda by 24 March 2021 with their respective proposed search methodology and timetable directions. I will then make a decision on the issue on the papers, unless further input from counsel is required; and
(e)in so far as required, the defendants shall then conduct a further search for the documents in each of the 11 discovery categories. They shall discover all documents located that fall within those categories that have not yet been discovered (if any).
[76] In relation to the interrogatories application, the defendants shall, within 14 days, file and serve on the plaintiffs statements prepared in accordance with r 8.39
in answer to the interrogatories 6(h), 6(j), 6(l), 6(n), 6(p), 6(q), 6(s) and 6(v) in the plaintiffs’ notice dated 7 September 2020 to the extent required by this judgment.
[77]Costs are reserved pending completion of discovery.
O G Paulsen
Associate Judge
Solicitors:
Ronald W Angland & Son, Leeston, Canterbury
Parker Cowan, Queenstown
ADDENDUM
[78] After this judgment was prepared but not issued, Ms Horne has, without leave, filed a further affidavit. The affidavit is directed to matters relevant to this application and in particular the adequacy of the search undertaken by the defendants to comply with their discovery obligations. I have not required the plaintiffs to respond to the affidavit, nor have I taken it into account in this judgment for reasons set out in a minute I issued to the parties on 1 March 2021. The orders that I have made above remain appropriate. The extent to which Ms Horne’s affidavit satisfies the requirements of [75](a) above is a matter for counsel to consider.
Schedule A
(a)All communications between the defendants and Grigori Nikolayevich Koulanov (in his capacity as a director of GBR Investment Ltd and in any other capacity), regarding GBRH or the associated companies, or the plaintiffs. This includes any phone records or documents such as file notes that refer to oral communication.
(b)All communications between the defendants and any other members of the Koulanov family, regarding GBRH or the associated companies, or the plaintiffs. This includes any phone records or documents such as file notes that refer to oral communication.
(c)Any reports or documents prepared by the defendants for GBR Investment Ltd or any member of the Koulanov family, regarding GBRH or the associated companies, or the plaintiffs.
(d)All communications between the defendants and any person working at Buddle Findlay, regarding GBRH or the associated companies, or the plaintiffs. This includes any phone records or documents such as file notes that refer to oral communication.
(e)All communications between the defendants and any person working at PricewaterhouseCoopers, regarding GBRH or the associated companies, or the plaintiffs. This includes any phone records or documents such as file notes that refer to oral communication.
(f)All invoices issued by the defendants relating to:
(i)the investigation of GBRH and any associated companies or the plaintiffs;
(ii)proceedings against GBRH and any associated companies or the plaintiffs;
(iii)the interim liquidation of GBRH and any associated companies;
(iv)the liquidation of GBRH and any associated companies.
(g)All communications between the defendants and any person working at the New Zealand Police, regarding GBRH or the associated companies, or the plaintiffs. This includes any phone records or documents such as file notes that refer to oral communication.
(h)All communications between the defendants and any residents of Goose Bay, regarding GBRH or the associated companies, or the plaintiffs. This includes any phone records or documents such as file notes that refer to oral communication.
(i)All communications between the defendants and any government department, body or entity regarding GBRH or the associated companies, or the plaintiffs. Without limitation, this includes communications with the Inland Revenue Department, the Ministry of Business, Innovation & Employment, and the Overseas Investment Office. This includes any phone records or documents such as file notes that refer to oral communication.
(j)All communications between the defendants and any person working for a bank, regarding the accounts of GBRH or the associated companies, or the plaintiffs. This includes any phone records or documents such as file notes that refer to oral communication.
(k)All communications between the defendants and any person working for Bookkeeping and Beyond, regarding GBRH or the associated companies, or the plaintiffs. This includes any phone records or documents such as file notes that refer to oral communication.
Schedule B
Interrogatory 6(f)
Question
6(f)Does Ms Horne or any other person engaged or employed by HFK Ltd have or had any personal relationship with any member of the Koulanov family?
i. If yes, for each relationship:
1.Who is the person engaged or employed by HFK Ltd?
2.Who is the member of the Koulanov family?
3.On what date did this relationship or association begin?
4.How long did this relationship last?
Answer
(a) There is no basis that I have seen for suggesting that I (or any other person engaged or employed by HFK Ltd) had a personal relationship with any member of the Koulanov family.
(b) The interrogatory relating to "any other person engaged or employed by HFK Ltd" is too wide. Approximately 50 people were employed by HFK at the time.
(c) The reference to "any member of the Koulanov family" is not specific. I do not know the familial relations of everyone with whom I have had a personal relationship.
(d) For the purposes of answering this interrogatory, I confirm I did not have a personal relationship with (or indeed even know in any way) any member of Grigori Koulanov's immediate family, being any spouse, sibling, parent or child of Mr Koulanov. I did not knowingly have a personal relationship with (or even know in any way) any other member of his family.
(e) Paragraphs 6(f)(1) to (4) are not applicable.
Interrogatory 6(g)
Question
6(g) Does Ms Horne or any other person employed by HFK Ltd have or had any relationship with any member of the Koulanov family aside from Grigori Nikolayevich Koulanov?
i.If yes, for each person:
1. Who was the person and with whom was the relationship?
2. On what date did this relationship or association begin?
3. Was this relationship in a personal or professional capacity?
4. How long did this relationship or association last?
Answer
(a)There is no basis that I have seen for suggesting that I (or any other person engaged or employed by HFK Ltd) had any kind of relationship with any member of the Koulanov family.
(b)The interrogatory relating to "any other person engaged or employed by HFK Ltd" is too wide.
(c)The reference to "any member of the Koulanov family" is not specific. I do not know the familial relations of everyone with whom I have had a personal relationship.
(d)For the purposes of answering this interrogatory, I confirm I did not have any kind of relationship with (or indeed even know in any way) any member of Grigori Koulanov’s immediate family, being any spouse, sibling, parent or child of Mr Koulanov. I did not knowingly have any kind of relationship with (or even know in any way) any other member of his family.
(e)Paragraphs 6(g)1 to 4 are not applicable.
Interrogatories 6(h), 6(j), 6(l) and 6(n)
Question
6(h) On what date did Ms Horne first meet Mark Russell?
Answer
I have been practicing as an accountant in Christchurch for approximately 25 years. Mr Russell was a business acquaintance. I do not recall the date I first met him.
Question
6(j) On what date did Ms Horne first meet Willie Palmer?
Answer
Mr Palmer was a business acquaintance. I do not recall the date I first met him.
Question
6(l) On what date did Ms Horne first meet Kelly Patterson?
Answer
Ms Patterson was a business acquaintance. I do not recall the date I first met her.
Question
6(n) On what date did Ms Horne first meet Rachel Dunningham?
Answer
Ms Dunningham was a business acquaintance. I do not recall the date I first met her. I am aware that she was a partner in Buddle Findlay before becoming a High Court Judge.
Interrogatory 6(p)
Question
6(p)Did Mr Russell, Mr Palmer, Ms Patterson or Ms Dunningham refer any work to Ms Horne or HFK Ltd?
i. If so, for each engagement:
1. On which date did the engagement begin and end?
2. What service was HFK Ltd or Ms Horne engaged to provide?
3. Did Mr Russell have any involvement in the matter?
4. Did Mr Palmer have any involvement in the matter?
5. Did Ms Patterson have any involvement in the matter?
6. Did Ms Dunningham have any involvement in the matter?
7. Did Ms Horne have any involvement in the matter?
8. What fees did HFK or Ms Horne charge?
Answer
(a)Buddle Findlay occasionally instructed members of HFK Ltd to act as liquidator or provide expert opinion, as did a number of other law firms. I do not recall the individual that may have provided the instructions.
(b)In relation to paragraph 6(p)(i), I do not recall and do not see the relevance of each and every particular engagement, and in any event it is too wide. In any event, I have no way of establishing the number of instructions provided from Buddle Findlay, still less from any individual at that firm. HFK Ltd did not record from whom a referral came and therefore Nexia Christchurch Ltd would not be able to ascertain this information, even if it were relevant, without reviewing each and every liquidation upon which HFK Ltd acted.
Interrogatory 6(q)
Question
6(q)Prior to 27 March 2009, were HFK Ltd or Ms Horne ever engaged to act for Buddle Findlay?
i. If yes, for each engagement:
1.On which date did the engagement begin and end?
2.What service was HFK Ltd or Ms Horne engaged to provide?
3.Did Mr Russell have any involvement in the matter?
4.Did Mr Palmer have any involvement in the matter?
5.Did Ms Patterson have any involvement in the matter?
6.Did Ms Dunningham have any involvement in the matter?
7.Did Ms Horne have any involvement in the matter?
8.What fees did HFK or Ms Horne charge?
Answer
(a)HFK Ltd and I had been instructed by Buddle Findlay as detailed in response to paragraph 6(p). HFK Ltd did not “act for” Buddle Findlay.
(b)Paragraph 6(p)(i) is not applicable.
Interrogatory 6(r)
Question
6(r)Prior to 27 March 2009, did Ms Horne or any person employed or instructed by HFK Ltd communicate with Mr Russell, Mr Palmer, Ms Patterson, Ms Dunningham or any other person employed by Buddle Findlay, regarding Goose Bay Ranch Holdings Ltd, any associated companies or the plaintiffs?
i. If yes, for each instance of communication:
1.Who was the communication between?
2.On what date did the communication take place?
3.Where did the communication take place?
4.Was any record created of the communication?
5.If so, are the defendants currently in possession of this record?
6.To the best of the defendants’ knowledge or recollection, what was discussed during the communication?
7.What was the purpose of the communication?
Answer
(a) The reference to “any other person engaged or employed by HFK Limited” is too wide. I had primary responsibility for the instructions provided by Buddle Findlay as referred to at paragraph 6(e) above, and for undertaking the relevant interim and full liquidations.
(b) I had communication with Mr Russell as detailed in response to paragraph 6(e) above.
(c) I do not recall any communication with any of the other individuals named prior to 27 March 2009 regarding the above-named entities.
(d) Paragraph 6(r)(i) is not applicable.
Interrogatory 6(s)
Question
6(s) On what date did Ms Horne first meet Richard Perrett?
Answer
Richard Perrett was an accountant at PricewaterhouseCoopers, it is more than likely that I have met him at some point. However, I do not recall when I met him.
Interrogatory 6(u)
Question
6(u) Did Mr Perrett refer any work to Ms Horne or HFK Ltd?
i. If so, for each engagement:
1.On which date did the engagement begin and end?
2.What service was HFK Ltd or Ms Horne engaged to provide?
3.Did Mr Perrett have any involvement in the matter?
4.Did Ms Horne have any involvement in the matter?
5.What fees did HFK or Ms Horne charge?
Answer
I do not recall. HFK Ltd may have received referral from PricewaterhouseCoopers for accountancy work in circumstances where they had a conflict, as we did for them and other accountancy firms. Otherwise, they were a competitor and HFK Ltd is unlikely to have referred work to them.
Interrogatory 6(v)
Question
6(v) Prior to 27 March 2009, did Ms Horne or any person employed or instructed by HFK Ltd communicate with Richard Perrett or any other person employed by PricewaterhouseCoopers (PwC), regarding Goose Bay Ranch Holdings Ltd, any associated companies or the plaintiffs?
If yes, for each instance of communication:
Who was the communication between?
2.On what date did the communication take place?
3.Where did the communication take place?
4.Was any record created of the communication?
5.If so, are the defendants currently in possession of this record?
6.To the best of the defendants’ knowledge or recollection, what was discussed during the communication?
7.What was the purpose of the communication?
Answer
(a) The reference to “any other person engaged or employed by HFK Ltd”
is too wide.
(b) I did not have any communication with Mr Perrett or PricewaterhouseCoopers with regards to the instructions received from Buddle Findlay, as dealt with at paragraph 6(e) above.
(c) I do not recall ever having any involvement with the above-named companies prior to that instruction, including any correspondence with Mr Perrett or PricewaterhouseCoopers.
Interrogatories 6(w) and 6(x)
Question
6(w) Prior to the delivery of a judgment on 27 November 2009 by Associate Judge Gendall, did Ms Horne or any person employed by HFK Ltd know, suspect, consider or research that GBR Investment Ltd did not have standing or the requisite legal interest to apply for the appointment of interim or permanent liquidators to any of the following companies: Moana Investment Property Ltd, Makura Settlement Ltd, PK Construction Ltd (together known as “the associated companies”)?
i. If yes, for each person who knew, suspected, considered or researched whether GBR Investment Ltd lacked standing or legal interest:
1.Who was the person who knew, suspected, considered or researched this issue?
2.On what date was the issue of standing or legal interest known, suspected, considered or researched?
3.On what basis were any issues known, suspected, considered or researched.
4.On or after the date the issue was known, suspected, considered or researched, did this person take any steps to alert any other person?
a.If so, what steps were taken?
b.Who did the person seek to alert?
c.What was the result, if any, of the other person being alerted?
Answer
(a)The reference to “any other person engaged or employed by HFK Limited” is too wide.
(b)I did not know, suspect, consider or research that GBRI did not have standing; I had been appointed as the interim liquidator by the Court and did not have any reason to question this appointment.
Interrogatory 6(x)
Question
6(x) Prior to the delivery of a judgment on 27 November 2009 by Associate Judge Gendall, did Ms Horne or any person employed by HFK Ltd make any inquiries into the business dealings of Moana Investment Property Ltd, Makura Settlement Ltd, PK Construction Ltd (together known as “the associated companies”)?
i.If yes, for each inquiry:
1.On what date was the inquiry made?
2.Who made the inquiry?
3.Where or to whom was the inquiry directed?
4.Was a record kept of the inquiry?
5.What information was sought in the inquiry?
6.What information was received as a result of the inquiry?
Answer
(a)The reference to “any other person engaged or employed by HFK Ltd” is too wide.
(b)My instructions from Buddle Findlay as referred to at paragraph 6(d) above, which are privileged, did not cause me to make any inquiries of any other party.
(c)Any documents relating to relevant inquiries made during the interim liquidations have been disclosed in my affidavit dated 28 April 2016.
(d)Paragraph 6(x)(i) is not applicable.
Interrogatories 6(y), (z), (aa), (ab), (ad) and (ae)
Question
6(y) At any time, did Keiran Horne or any person employed or instructed by HFK Ltd communicate with the Inland Revenue Department regarding Goose Bay Ranch Holdings Ltd, any associated companies or the plaintiffs?
i.If yes, for instance of communication:
1. Who was the communication between?
2. On what date did this communication take place?
3. Was a record kept of this communication?
a.If so, are the defendants in possession of this record?
4. What information was sought by the Inland Revenue Department in the course of this communication?
5. What information was disclosed by the Inland Revenue Department in the course of this communication?
6. What information was sought by Keiran Horne or any person employed or instructed by HFK Ltd in the course of this communication?
7. What information was disclosed by Keiran Horne or any person employed or instructed by HFK Ltd in the course of this communication?
8. For what purpose was this communication made?
Answer
(a)The reference to “any other person engaged or employed by HFK Ltd” is too wide.
(b)All relevant communication with the Inland Revenue Department has been discovered in my affidavit of documents dated 28 April 2016.
Question
6(z) At any time, did Keiran Horne or any person employed or instructed by HFK Ltd communicate with the Ministry of Business, Innovation & Employment regarding Goose Bay Ranch Holdings Ltd, any associated companies or the plaintiffs?
If yes, for each instance of communication:
Who was the communication between?
2.On what date did this communication take place?
3.Was a record kept of this communication?
a. If so, are the defendants in possession of this record?
4.What information was sought by the Ministry of Business, Innovation & Employment in the course of this communication?
5.What information was disclosed by the Ministry of Business, Innovation & Employment in the course of this communication?
6.What information was sought by Keiran Horne or any person employed or instructed by HFK Ltd in the course of this communication?
7.What information was disclosed by Keiran Horne or any person employed or instructed by HFK Ltd in the course of this communication?
8.For what purpose was this communication made?
Answer
(a)The reference to “any other person engaged or employed by HFK Ltd” is too wide.
(b)All relevant communication with the Ministry of Business, Innovation & Employment, if any, has been discovered in my affidavit of documents dated 28 April 2016.
Question
6(aa) At any time, did Keiran Horne or any person employed or instructed by HFK Limited communicate with the Overseas Investment Office regarding Goose Bay Ranch Holdings Ltd, any associated companies or the plaintiffs?
If yes, for each instance of communication:
Who was the communication between?
2.On what date did this communication take place?
3.Was a record kept of this communication?
a.If so, are the defendants in possession of this record?
4.What information was sought by the Overseas Investment Office in the course of this communication?
5.What information was disclosed by the Overseas Investment Office in the course of this communication?
6.What information was sought by Keiran Horne or any person employed or instructed by HFK Ltd in the course of this communication?
7.What information was disclosed by Keiran Horne or any person employed or instructed by HFK Ltd in the course of this communication?
8.For what purpose was this communication made?
Answer
(a)The reference to “any other person engaged or employed by HFK Ltd” is too wide.
(b)All relevant communication with the Overseas Investment Office, if any, has been discovered in my affidavit of documents dated 28 April 2016.
Question
6(bb) At any time, did Keiran Horne or any person employed or instructed by HFK Ltd communicate with the Police in any way in connection to the interim liquidation or liquidation, including to ask, recommend or otherwise suggest that Police search Moana Farm?
i. If yes, for each instance of communication:
1.Who communicated with Police?
2.On what date did this communication take place?
3.Was a record kept of this communication?
a.If so, are the defendants in possession of this record?
4.What information was disclosed to Police in the course of requesting, recommending or suggesting the search?
5.On what basis, including any legal basis, did the person believe the Police ought to carry out a search?
6.Prior to the communication, did the person inquire or receive information as to the identity of the owner of Moana Farm?
a.If yes, on what date(s) was the inquiry made or information received?
b.With whom was the inquiry made or who supplied the information?
7.Prior to the communication, did the person inquire or receive information as to the identity of any tenant of Moana Farm?
a.If yes, on what date(s) was the inquiry made or information received?
b.With whom was the inquiry made or who supplied the information?
8.On the date of the communication, who did the person believe to be the owner of Moana Farm?
9.On the date of the communication, who did the person believe to be the tenant of Moana Farm?
ii. Did Ms Horne or any person employed or instructed by HFK Ltd attend a search of Moana Farm by Police?
1.If yes, in each instance:
a. Who attended the search?
b. Did the person/people take any pictures or make any record of what was found?
c. What were the pictures or records used for?
iii. Were the pictures taken by Police used by any person employed or instructed by HFK Ltd?
1.If yes, for what purpose were the pictures used?
Answer
(a)The reference to “any other person engaged or employed by HFK Ltd” is too wide.
(b)All relevant communication with the Police has been discovered in my affidavit of documents dated 28 April 2016.
(c)I do not recall requesting the Police to search Moana Farm, and do not consider that I would have had any standing to make such a request.
(d)To the best of my recollection, any communication with the Police was initiated by them.
Question
6(cc) Between 1 January 2008 and 31 December 2010, did Ms Horne or any person employed or instructed by HFK Ltd communicate with any residents of Goose Bay about Goose Bay Ranch Holdings Ltd, any associated companies or the plaintiffs?
If yes, for each instance of communication:
Who was the communication between?
2.Who instigated the communication?
3.On what date did the communication take place?
4.Where did the communication take place?
5.Was any record created of the communication?
6.If so, are the defendants currently in possession of this record?
7.To the best of the defendants’ knowledge or recollection, what was discussed during the communication?
8.What was the purpose of the communication?
Answer
(a)The reference to “any other person engaged or employed by HFK Ltd” is too wide.
(b)All relevant communication with any resident of Goose Bay has been discovered in my affidavit of documents dated 28 April 2016. File notes would only have been kept of conversations that were relevant to the liquidations.
Question
6(dd) At any time, did Ms Horne or any person employed or instructed by HFK Ltd communicate with any person employed or instructed by a bank, regarding the bank accounts of Goose Bay Ranch Holdings Ltd, any associated companies or the plaintiffs?
If yes, for each instance of communication:
Who was the communication between?
2.Who instigated the communication?
3.On what date did the communication take place?
4.Where did the communication take place?
5.Was any record created of the communication?
6.If so, are the defendants currently in possession of this record?
7.To the best of the defendants’ knowledge or recollection, what was discussed during the communication?
8.What was the purpose of the communication?
Answer
(a)The reference to “any other person engaged or employed by HFK Ltd” is too wide.
(b)All relevant communication with the relevant banks has been discovered in my affidavit of documents dated 28 April 2016.
Question
6(ee) At any time, did Ms Horne or any person employed or instructed by HFK Ltd communicate with any person employed or instructed by Bookkeeping and Beyond about Goose Bay Ranch Holdings Ltd, any associated companies or the plaintiffs?
If yes, for each instance of communication:
Who was the communication between?
2.Who instigated the communication?
3.On what date did the communication take place?
4.Where did the communication take place?
5.Was any record created of the communication?
6.If so, are the defendants currently in possession of this record?
7.To the best of the defendants’ knowledge or recollection, what was discussed during the communication?
8.What was the purpose of the communication?
Answer
(a)The reference to “any other person engaged or employed by HFK Ltd” is too wide.
(b)All relevant communication with the Bookkeeping and Beyond has been discovered in my affidavit of documents dated 28 April 2016.
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