Baygold Limited v FMG Insurance Limited
[2024] NZHC 1026
•1 May 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-485-000677
[2024] NZHC 1026
BETWEEN BAYGOLD LIMITED
Plaintiff
AND
FMG INSURANCE LIMITED
Defendant
ALLIED WORLD MANAGING AGENCY LIMITED
First Third Party
ANTARES MANAGING AGENCY LIMITED
Second Third Party
Hearing: 21 March 2024 Appearances:
S Michelsen / M Toulmin for the Plaintiff / Respondent M Rollason / J Gurnick for the Defendant / Applicant D S McGill for Third Parties
Judgment:
1 May 2024
JUDGMENT OF ASSOCIATE JUDGE GARDINER
This judgment was delivered by me on 1 May 2024 at 3.30 p.m. pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date.......................................
Solicitors:
Keegan Alexander, Auckland
MinterEllisonRuddWatts, Auckland
BAYGOLD LTD v FMG INSURANCE LTD [2024] NZHC 1026 [1 May 2024]
Introduction
[1] Baygold Limited (Baygold) sues FMG Insurance Limited (FMG) in relation to disputed insurance cover under a professional indemnity policy. Broadly, Baygold seeks indemnification from FMG for the amounts for which it settled with each of three kiwifruit orchards (excluding the excess amounts for which it was liable), plus interest and costs. The settlements followed Baygold’s unintended application of herbicide to the orchards which resulted in the kiwifruit being rejected by Zespri and accordingly being rendered valueless.
[2]FMG applies for particular discovery of:
(a)all documents relating to the negotiations between Baygold and Baygold Holdings Limited as General Partner for Baygold Orchards Limited Partnership (Arriba Orchard), Kouranga Limited (Venice Orchard) and Swift Current Orchard, a partnership comprising Alistair and Jeannie Reese (Swift Current Orchard) (the Orchards) in relation to the Orchards’ claims and the settlement of those claims;
(b)all financial accounts belonging to the Orchards that Baygold has in its possession relating to the 2017/18, 2018/19 and 2019/20 seasons; and
(c)all documents relating to advice (including legal advice) received by Baygold in connection with the settlements reached with the Orchards.
[3]Baygold:
(a)does not oppose the orders proposed at [2(a)] above because Baygold has already conducted searches for any documents within this category and any relevant documents have already been disclosed to FMG; but
(b)opposes the making of the order proposed at [2(b)] because:
(i)the financial accounts of the Orchards are not relevant to any of the issues in this proceeding; and
(ii)FMG has applied for non-party discovery orders against the Orchards, and this is the appropriate avenue for FMG to obtain access to this information if the Court regards the information as relevant; and
(c)opposes the making of the order proposed at [2(c)] because:
(i)it is for Baygold, and not FMG, to establish that the settlement amounts negotiated with the Orchards were reasonable – FMG's claim for access to privileged legal advice is predicated on an erroneous attempt to reverse the burden of proof;
(ii)to the extent that the documents sought relate to any legal advice that Baygold may have taken in relation to settlement with the Orchards, such documents are subject to legal privilege and there has been no waiver of any such privilege – Baygold has not sought to rely on any such legal advice, let alone to inject the substance of it into its pleading; and
(iii)to the extent that the documents requested relate to non-legal advice that Baygold took in connection with settlement with the Orchards, such advice has already been disclosed by Baygold to FMG during discovery in these proceedings.
[4]FMG also applies for particular discovery from the non-party Orchards of:
(a)all documents relating to the negotiations between Baygold and the Orchards in relation to the Orchards’ claims and settlements of those claims;
(b)the Orchards’ audited annual accounts relating to the 2017/18, 2018/19 and 2019/20 seasons;
(c)the Orchards’ detailed monthly profit and loss statements, showing expenses by category (expense code or similar) relating to the 2016/17, 2017/18 and 2018/19 seasons; and
(d)all documents relating to advice (including legal advice) received by the Orchards from their advisers in connection with the settlements.
[5] The Orchards have not taken any steps to oppose the application against them. Venice Orchard has been removed from the Register of Companies.
Background
[6] Baygold is a registered company, carrying on business as a provider of kiwifruit orchard management services.
[7] Baygold provided composite spray services to the Orchards, which grow kiwifruit in the Bay of Plenty Region.
[8] Between 14 and 16 November 2018, an employee of Baygold sprayed glyphosate onto each of the Orchards. Glyphosate is toxic to kiwifruit vines. The application of the spray caused damage to the vines and fruit on the Orchards.
[9]The Orchards made claims against Baygold for losses (the Orchard Claims).
[10]Baygold and the Orchards entered into the following settlements in late 2019:
(a)Baygold compensated Swift Current Orchard $963,493.50 for its losses (a payment of $749,726.40 after accounting for set-off of outstanding invoices of $213,767.10);
(b)Baygold compensated Venice Orchard $796,758.13 for its purported loss; and
(c)Baygold compensated Arriba Orchard $1,009,627.34 for its purported loss;
together, the Orchard Settlements.
[11]Baygold asserts that the Orchard Settlements were reasonable because:
(a)it acted prudently to minimise its insurance claims after they were initially declined by FMG. Had it not done so, it is likely that further costs would have accrued (including costs arising out of legal proceedings brought by the Orchards against Baygold), increasing the loss claimed;
(b)it obtained independent expert assessments of each Orchard Claim;
(c)the settlements reflected its likely civil liability to each Orchard prior to being discounted; and
(d)the Orchard Settlements were discounted by 22.5 per cent from the initial claim by each Orchard, as negotiated by Baygold.
[12] Between 31 March 2018 and 31 March 2019, Baygold, as insured, and FMG, as insurer, were parties to a contract of professional indemnity insurance (the Contract).
[13] On 19 November 2018, Baygold notified FMG of the circumstances of the damage caused to the vines and fruit on the Orchards.
[14] On 20 March 2019, Baygold made claims to FMG for indemnification for each of the Orchard Claims.
[15] On 17 April 2019, FMG rejected Baygold’s claims on the basis that an exclusion under the Contract applied and it was therefore not liable to indemnify Baygold for any of the Orchard Claims.
[16] Baygold sues FMG for the total amount of the Orchard Settlements less the total excess for the three claims made to FMG, plus interest and costs.
Legal principles
Particular discovery from a party
[17] Under r 8.19 of the High Court Rules 2016, a Court may make an order for particular discovery against a party after the proceeding has commenced, where:
…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…
[18] The Court usually follows a four-stage approach in considering applications under r 8.19.1 First, are the documents sought relevant to issues before the Court, and if so, how important will they be? Secondly, are there grounds for belief that the documents exist? This will often be a matter of inference. How strong is that evidence? Thirdly, would the time and cost of discovery be proportionate to its potential value? Fourthly, weighing and balancing these matters, and in the Court’s discretion, is an order appropriate?
[19] The starting point is that a document or class of documents will only be discoverable if relevant to the matters which will be at issue before the Court. Only then can it be said that, in terms of the rule, they “should have been discovered”.2
[20] Relevance is to be assessed according to the pleadings.3 In determining relevance, it is the case of the party seeking discovery that must be assumed to be true, not the party from whom discovery is sought.4
[21] The threshold embodied in “grounds for belief that the documents exist” is not high; all that is necessary is to show that there is some credible evidence which, assessed objectively, indicates that the documents that are sought exist and are in the control of the party from whom they are sought.5
1 Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd [2015] NZHC 2760, [2018] NZAR 600 at [14]; and Jessica Gorman and others McGechan on Procedure (online ed, Thomson Reuters) at [HR8.19.03].
2 Robert v Foxton Equities Ltd [2014] NZHC 726, [2015] NZAR 1351 at [8(a)].
3 Robert v Foxton Equities Ltd, above n 2, at [8(b)].
4 Kawarau Village Holdings Ltd v Yuen [2015] NZHC 1379 at [38].
5 Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd, above n 1, at [12] and Robert v Foxton Equities Ltd, above n 2, at [8(c)].
[22] As such, the party seeking further discovery must establish that the existing affidavit of documents is incomplete.6
[23] A party must make a reasonable search for documents within the scope of the discovery order.7 What amounts to a reasonable search depends on the circumstances, including:8
(a)the nature and complexity of the proceeding;
(b)the number of documents involved;
(c)the ease and cost of retrieving the 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.
Particular discovery from a non-party
[24] A judge may make an order for discovery against a non-party if it appears that the party may be, or may have been, in control of documents that they would have had to discover had they been a party to the proceeding.9
[25]A non-party discovery order must be necessary; meaning that:10
other sources of evidence are unlikely to be sufficient because they are materially incomplete or unreliable. And that the documents sought may make a real difference, and are not merely marginal.
6 McCullagh v Robt Jones Holdings Ltd [2015] NZHC 1462, (2022) 22 PRNZ 615 at [7]; and Lighter Quay Residents' Society Inc v Waterfront Properties (2009) Ltd [2017] NZHC 818 at [16(b)].
7 High Court Rules 2016, r 8.14(1).
8 Rule 8.14(2).
9 High Court Rules, r 8.21.
10 Vector Gas Contracts Ltd v Contact Energy Ltd [2014] NZHC 3171, [2015] 2 NZLR 670 at [30].
[26] Although there is no longer an explicit requirement that the order be necessary when it is made, the exclusion of this requirement from the current r 8.21 has been deemed to be “a distinction without a difference…”11
Legal advice privilege and waiver of privilege
[27] A person who requests or obtains professional legal services from a legal adviser has legal advice privilege in respect of any communication between the person and the legal adviser, if the communication was intended to be confidential, and was made during and for the purpose of requesting, obtaining, or giving professional legal services.12
[28] A person who has legal advice privilege waives the privilege if the person acts to put the privileged communication, information, opinion or document in issue in a proceeding.13
Discovery from Baygold
Financial accounts for the Orchards for the 2017/18, 2018/19 and 2019/20 seasons
[29] FMG maintains that the financial accounts are necessary to enable FMG to determine the reasonableness of the settlements.
[30] In support of that position, FMG relies on the expert opinion of Mr Leon Briggs, chartered accountant. Mr Briggs deposes that:
(a)he has reviewed all the documents disclosed by Baygold for the purpose of considering the losses suffered by the Orchards and whether the Orchard Settlements are a fair reflection of the losses;
(b)he cannot quantify the losses suffered by the Orchards without historical financial accounts for the Orchards. He states that without
11 Vector Gas Contracts Ltd v Contact Energy Ltd, above n 10, at [30]; Jessica Gorman and others
McGechan on Procedure (online ed, Thomson Reuters) at [HR8.21.02].
12 Evidence Act 2006, s 54(1).
13 Evidence Act, s 65(3)(a).
this information, the loss in trade claimed by the Orchards (that formed the basis for the settlements) cannot be compared against the expected trade;
(c)it is unclear whether there was any change to the orcharding costs incurred by the Orchards because of the crop failure. Mr Briggs states:
15The Orchards have provided details of the growing costs incurred during the 2018 / 2019 season, however, this on its own is meaningless if there is nothing to compare those costs to.
16I would normally expect to see detailed historical profit and loss or management accounts for several seasons before the loss season, from which I could establish expected orcharding costs each season for each activity, for example, thinning, girdling, pruning and spraying etc.
17Once the expected orcharding costs have been established, I can compare the costs actually incurred for the loss season to determine whether any of the costs materially changed, and if so, whether this was caused by the glyphosate spray.
(d)it is difficult to understand how and on what basis the 22.5 per cent agreed adjustment was reached.
[31] Baygold maintains that the financial accounts of the Orchards are irrelevant. It maintains that the correct measure of loss, which formed the basis of the Orchard Settlements, is the net loss suffered by each Orchard. It says that this net loss can be readily identified as the loss of payments that Zespri would otherwise have made to each Orchard for the 2018/2019 crop. It says that the Orchards had, by the time Zespri rejected their fruit, already expended all the necessary production costs to produce the export crop, except for harvest costs. The Orchards were denied the expected payments from Zespri. They avoided incurring post-harvest costs and appropriately accounted for that when quantifying the loss.
[32] Baygold has discovered reports produced for each of the Orchards by Agriculture Risk Management Limited (ARM) and review reports produced by Linda Hawes on instruction from Baygold. These reports were prepared for the purpose of resolving the Orchards’ claims against Baygold and calculating the amounts necessary
to compensate the Orchards for their losses arising from Baygold’s error. ARM calculated the loss as the measure of the production costs of the kiwifruit and the unrealised export payments, less the additional costs that would have otherwise been incurred getting the kiwifruit to market, but that were saved. Baygold relied on these figures to negotiate the settlements, and it maintains that it is this methodology that is relevant to the issue of the reasonableness of the settlements.
[33] Baygold rejects that considering the performance of the Orchards over different seasons would shed any further light on the expected trade for the 2018/ 2019 kiwifruit season.
[34] Baygold also rejects that it is necessary to consider historical records to confirm that no further costs were saved that should be accounted for when quantifying loss. Zespri’s decision to reject the fruit was made immediately prior to harvest. Baygold says therefore that the only remaining production costs were those for harvest of the fruit. Baygold accepts that an adjustment should be made to the loss assessed by ARM and Ms Hawes to account for either avoiding harvesting costs altogether or to otherwise reflect the difference in cost between harvesting kiwifruit for export and undertaking a “strip pick” to drop the contaminated fruit onto the ground. However, it says these adjustments are relatively minor in the context of the settlements – the amounts are well within the 22.5 per cent discount that Baygold commercially negotiated with each Orchard. In any event, the adjustments would not be accurately identified and quantified by comparison with the historical financial records.
[35] Should the Court nevertheless regard the documents as relevant, Baygold regards non-party discovery orders as the appropriate avenue by which the Court should compel discovery, as there is presumably a degree of confidentiality and commercial sensitivity in the documents FMG seeks.
Assessment
[36] The essential difference between the parties seems to relate to the correct approach to assessing the reasonableness of the settlements. Baygold’s position is that the reasonableness should be assessed with reference to the methodology that was in fact adopted to determine the settlements. Because the financial performance of the
Orchards over previous seasons did not form part of that methodology, that performance is not relevant to the issue. Consequently, the profit and loss statements for those seasons are not relevant.
[37] Whereas FMG takes the view that assessing the reasonableness of the settlements involves assessing the methodology used by Baygold and the Orchards against other possible methodologies; or at least verifying the output of the methodology used against other sources to confirm that the methodology and the result generated is sound. FMG’s expert considers that the Orchards’ calculation of loss for the 2018/19 season based on loss in trade needs to be viewed against the Orchards’ performance for several historical seasons. Hence, the Orchards’ profit and loss statements for several historical seasons are relevant.
[38] Mr Briggs’ expert evidence that the reasonableness of the methodology and the settlement amounts arrived at must be assessed against the Orchards’ historical performance is not disputed by any expert with comparable expertise for Baygold. Baygold’s chief executive has filed an affidavit in opposition to the application which simply attaches correspondence between the respective parties’ solicitors.
[39] The reasonableness of the settlements, and the correct approach to assessing reasonableness, are issues for trial. Ahead of that determination it would not be right to limit discovery to documents relevant to the approach advocated by Baygold. Mr Briggs’ undisputed expert evidence provides a sound foundation for the conclusion that the historical financial statements are relevant to the issue of reasonableness of the settlements.
Should Baygold be ordered to discover the documents (to the extent that they are or have been in Baygold’s possession or control) or should the non-parties be ordered to discover the documents?
[40] Where a non-party holds relevant documents, but they have a relationship with one of the parties such that the party can extract documents from the non-party, then that party should take all reasonable steps to obtain those documents — reasonableness being fact and circumstance dependant.14
14 Green & McCahill Holdings Ltd v Williams [2023] NZHC 919 at [70].
[41] There is a degree of inter-relationship between two of the Orchards and Baygold. Murray McBride is a director of Baygold and Arriba Orchard; and was a director of Venice Orchard before it was removed from the Companies Register. In these circumstances an order against Baygold to take reasonable steps to obtain these documents from Arriba and Venice Orchards is appropriate.
[42] Baygold is not related to Swift Current Orchard. Therefore, an order will be made against this orchard.
Advice (including legal advice) relating to Baygold’s settlements with the Orchards
[43] FMG seeks “all documents relating to advice (including legal advice) received by [Baygold] by its advisors in connection with the [Orchard Settlements]”.
[44] FMG claims that legal advice received by Baygold in connection with the settlements is relevant to the reasonableness of the settlements. It says that it is evident from paragraph 17(c) and (d) of Baygold’s statement of claim, and correspondence from Baygold’s solicitors, that Baygold received and relied on legal advice on its likely civil liability and the 22.5 per cent “loss adjustment” to reflect “litigation realities”.15
[45]Baygold’s statement of claim says:
17. Each of the Orchard Settlements was reasonable in the circumstances:
(a)Baygold acted as a prudent uninsured to minimise the claims after they were initially declined by FMG – had Baygold not done so then additional costs would likely have accrued (including arising form legal proceedings issued by the Orchards against Baygold) increasing the loss claimed;
(b)Baygold obtained independent expert assessments of each Orchard’s claim;
(c)prior to the discount discussed below, each Orchard Settlement amount reflected Baygold’s likely civil liability to each Orchard; and
(d)the amounts were less than those claimed by each Orchard by 22.5%, being the discount Baygold negotiated with each Orchard.
15 Email from Baygold’s solicitors to FMG’s counsel, 4 October 2021.
[46]FMG denies paragraph 17 in its statement of defence dated 7 December 2022.
[47] Further, FMG submits that Baygold has waived privilege in this legal advice under s 65 of the Evidence Act. FMG claims that Baygold asserts reliance on the privileged communication and has injected the substance of the privileged communication into the proceedings, and that not disclosing the legal advice would amount to an abuse of legal privilege.
[48] Baygold responds that it has disclosed all advice, other than legal advice, it received relating to the settlements with the Orchards. Baygold says that merely having pleaded that a settlement is reasonable does not mean that a defendant has a right to inspect its legally privileged documents. Furthermore, Baygold says that its pleading at paragraph 17(c) and (d) does not amount to a waiver of privilege in any legal advice it received.
[49] I accept that any advice (including legal advice) Baygold received relating to the Orchard Claims and the Orchard Settlements is relevant to the issue of the reasonableness of the settlements.
[50] Baygold has already discovered all non-legal advice it received, including the independent expert assessments of each Orchard’s claim made by ARM and peer-reviewed by Linda Hawes. FMG has not established grounds for believing that further documents of this kind exist that have not been discovered.
[51] There is reason to believe that Baygold did receive legal advice. In the email from Baygold’s solicitors to FMG’s counsel dated 4 October 2021, Baygold’s solicitors explain that Baygold was represented by MinterEllisonRuddWatts in relation to each settlement. Settlement deeds are in evidence and have obviously been prepared by MinterEllisonRuddWatts.
[52] Therefore, in terms of r 8.19, the legal advice is relevant, and there are grounds for believing that the documents relating to this advice that FMG seeks do exist.
[53]However, I do not accept that Baygold has waived privilege in this legal advice.
[54] As FMG accepts, the mere existence of a privileged communication that is relevant to an issue in the case provides no basis for waiver. Even a party’s asserted reliance on a privileged communication is generally insufficient. Waiver occurs where a party both asserts reliance upon the privileged communication and seeks to inject the substance of the communication in evidence.16 At that point an abuse of privilege exists. The claimant cannot have the benefit of reliance upon the substance of the advice and seek to shield that advice from disclosure to the other side. To permit this would give rise to unfairness in that the parties’ conduct would be offensive to the trial process.
[55] Baygold’s reference in the statement of claim to the settlements being “reasonable” because they “reflected Baygold’s likely civil liability” is a long way from injecting the substance of the legal advice it received into evidence while refusing to disclose the content of the advice.
[56] The cases relied on by FMG are readily distinguishable because the plaintiffs in those cases expressly relied on the legal advice in question to establish the reasonableness of the settlements. In Nathans Finance New Zealand Ltd (in rec) v AIG Insurance New Zealand Ltd17 (which did not expressly address issues of privilege or waiver), documents relating to legal advice received by former directors of Nathans New Zealand Finance Ltd in relation to the reasonableness of a settlement were held to be discoverable by the plaintiffs. However, in support of their pleading that the directors had acted reasonably in entering into the settlement, the plaintiffs’ draft amended statement of claim had made far more substantial reference to the relevant legal advice than in the case at hand, disclosing that this advice suggested that findings of negligence and breaches of duties against the directors were probable, and that the settlement figure was reasonable given the likely outcome of any attempt to defend the claim on liability.
16 Astrazeneca Ltd v Commerce Commission (2008) 12 TCLR 116 (HC) at [39]; and PricewaterhouseCoopers v Zag Ltd [2023] NZHC 1470 at [77]. See also Stockman v Health and Disability Commissioner [2020] NZCA 588 at [70] where the Court found that a party is entitled to give the reasons for a decision, even if the decision is made based on legal advice, without compromising the claim to privilege in respect of that advice.
17 Nathans Finance New Zealand Ltd (in rec) v AIG Insurance New Zealand Ltd [2013] NZHC 3137.
[57] FMG also refers to the Australian case of Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd, where legal advice received by the respondent in relation to a settlement it had entered into was held to be admissible. This case was decided according to Australia’s legal framework and is nevertheless factually distinguishable from the present case in that the respondent had given evidence detailing the substance of the legal advice received; including that it had been advised that it should accept the settlement sum “rather than losing everything”, and that the other party to the settlement “wouldn’t pay more than” that sum.
Application for non-party discovery
[58] As noted earlier, an order for particular discovery against a non-party may be made if it appears that the non-party may be or may have been in control of documents that they would have had to discover if they were a party to the proceeding.
[59] I have found that the financial accounts of the Orchards for the 2017/2018, 2018/2019, and 2019/2020 seasons are relevant to an issue in the proceeding. Had the Orchards been a party to the proceeding they would have been required to discover these documents.
[60] Therefore, I find that the financial accounts sought at paragraph 1(b) and (c) of the interlocutory application against the Orchards are relevant and should be disclosed, subject to any appropriate redactions to protect confidentiality and commercial sensitivity.
[61] No order is made against the Orchards for the category of documents sought at paragraph 1(a) of the interlocutory application for third-party discovery (documents relating to the negotiations). An order is unnecessary given that Baygold has confirmed that it has searched for and discovered all these documents and consent to an order in any event. To the extent that this category is intended to refer to internal Orchard documents that did not form part of the negotiations with Baygold, they are irrelevant to the reasonableness of the settlements from the perspective of Baygold.
[62] As I have found that no order is warranted against Baygold in terms of paragraph 1(d) of the application (advice including legal advice), no order is made against the Orchards.
Result
[63]I order:
(a)(by consent) Baygold to discover all documents relating to the negotiations between itself and Arriba Orchard, Venice Orchard and Swift Current Orchard in relation to the Orchards’ claims and the settlement of those claims;
(b)Baygold to discover all financial accounts belonging to the Orchards that Baygold has in its possession relating to the 2017/18, 2018/19 and 2019/20 seasons (subject to appropriate redactions for confidentiality and commercial sensitivity to be agreed with the Orchards);
(c)Baygold to take reasonable steps to obtain from Arriba and Venice Orchards the following documents and to discover them to FMG and the first and second third parties (subject to appropriate redactions for confidentiality and commercial sensitivity to be agreed with these orchards):
(i)audited annual accounts relating to the 2017/2018, 2018/2019, and 2019/2020 seasons; and
(ii)detailed monthly profit and loss statements, showing expenses by category (expense code or similar) relating to the 2016/2017, 2017/2018, and 2018/2019 seasons.
(d)Should Baygold be unable to obtain the documents at (c) after taking reasonable steps, FMG has leave to approach the Court for orders against Arriba and Venice Orchards themselves.
(e)Swift Current Orchard to discover to FMG, Baygold and the first and second third parties (subject to appropriate redactions for confidentiality and commercial sensitivity):
(i)audited annual accounts relating to the 2017/2018, 2018/2019, and 2019/2020 seasons; and
(ii)detailed monthly profit and loss statements, showing expenses by category (expense code or similar) relating to the 2016/2017, 2017/2018, and 2018/2019 seasons.
(f)The balance of the interlocutory applications against Baygold and the non-parties are dismissed.
[64] FMG will pay Swift Current Orchard’s expenses (including solicitor and client costs) in complying with these orders.
[65] As each of FMG and Baygold have been successful in relation to one of the disputed categories of documents, costs between them will lie where they fall.
Associate Judge Gardiner
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