Beverley v DC One H1 Limited - [2024] NZHC 3707

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-157

[2024] NZHC 3707

BETWEEN ANTHONY AND WENDY BEVERLEY & ORS
Plaintiff

AND

DC ONE H1 LIMITED & ORS

Defendant

CIV-2023-485-47

BETWEEN

DRYLANDCARBON GP ONE LIMITED & ORS

Plaintiff

AND

WILLIAM JAMES WATERHOUSE LECKIE & ORS

Defendant

CIV-2024-485-152

BETWEEN

PHEASANT TAIL HOLDINGS LIMITED
Plaintiff

AND

ANTHONY MONTGOMERY BEVERLEY & ORS

Defendant

Hearing: On the papers

Appearances:

M G Colson KC, K J Dobbs and M R M Gale for Plaintiffs (CIV- 2022-485-157 and CIV-2023-485-47) and for Defendants (CIV- 2024-485-152)

J B M Smith KC, A S Olney and O C Gascoigne for Defendants (CIV-2022-485-157 and CIV-2023-485-47) and for Plaintiff (CIV- 2024-485-152)

Judgment:

6 December 2024

ANTHONY AND WENDY BEVERLEY & ORS v DC ONE H1 LIMITED & ORS [2024] NZHC 3707 [6
December 2024]

JUDGMENT OF BOLDT J

[1] This interlocutory application forms part of three complex proceedings that are being jointly case managed, and will eventually be tried together. It concerns 43 documents, listed as part of the defendants’ discovery, over which the defendants claim privilege. 1 In each case the plaintiffs apply to have the claim of privilege set aside and reassessed pursuant to r 8.25 of the High Court Rules 2016.2

[2] On 11 October 2024, Radich J, who is responsible for the case management of the proceedings, directed that a Judge who is unconnected with the case should review the documents and the claims of privilege.3 Having done so, I consider most of the claims are properly made, but some are not.

Background

[3] Justice Radich, in his decision consolidating the three proceedings, summarised the background:4

The underlying factual background

[4] … Anthony Beverley, William Leckie and Christopher Morrison established a carbon afforestation fund to produce carbon credits for the fund’s investors (the Drylandcarbon venture).

[5] They established Drylandcarbon GP One Ltd (the General Partner), Drylandcarbon One Management Ltd (the Manager) and DC One H1 Ltd (H1) for that purpose (together, the Drylandcarbon companies).

[6] H1 is the holding company for the other Drylandcarbon companies and is owned as to 50 per cent by Mr and Mrs Beverley and as to 50 per cent by Pheasant Tail Holdings Ltd, a company in which Messrs Leckie and Morrison are directors and shareholders.

[7] Messrs Leckie and Morrison established another fund, through Lewis Tucker Forest Partners Ltd, Lewis Tucker FP Investment Ltd, Forest Partners GP Ltd and Lewis Tucker FP Management Ltd (the Forest Partners venture)

1      “Defendants” is a shorthand reference to the defendants in CIV-2022-485-157 and CIV-2023-485- 47 and the plaintiffs in CIV-2024-485-152.
2      “Plaintiffs” is a shorthand reference to the plaintiffs in CIV-2022-385-157 and CIV-2023-485-47 and the defendants in CIV-2024-485-12.
3      Beverley v DC One H1 Ltd HC Wellington CIV-2022-485-157, 11 October 2024 (Minute of Radich J, Privilege claimed in discovered documents) [Radich J Minute] at [4]–[5].
4      Beverley v DC One H1 Ltd [2024] NZHC 1303.

with a similar purpose. It is alleged by the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NZHC 3707
Decision Date: 6 December 2024

CaseChat Overview and Summary

This interlocutory application concerns 43 documents listed as part of the defendants’ discovery over which the defendants claim privilege. The plaintiffs in each case apply to have the claim of privilege set aside and reassessed. This matter is part of three complex proceedings that are being jointly case managed and will eventually be tried together. The plaintiffs seek declarations, orders for the reinstatement of a director, and orders preventing certain proceedings. The defendants claim privilege over two categories of documents: the “Leckie Morrison documents” and the “Forest Partners documents.” The defendants claim privilege over a number of the Leckie Morrison documents from February 2021, when it is said that litigation was reasonably apprehended. The defendants also claim privilege over material that was copied to Colin Jacobs, the general manager of Drylandcarbon One Management Ltd. The plaintiffs do not accept the defendants’ view that Mr Jacobs acted as an authorised agent of Messrs Morrison and Leckie and Pheasant Tail Holdings Ltd during the relevant time and are of the view that privilege was waived when he was copied in to or involved in communications between the defendants and their legal advisers. The defendants claim privilege over this set of documents as belonging to either Pheasant Tail Holdings or the Forest Partners Ltd Partnership arising from Buddle Findlay’s engagement in the establishment of, and their subsequent engagement for, the Forest Partners Ltd Partnership. In the case of two documents, without prejudice privilege is claimed. The plaintiffs say that it is not clear that the communications were both prepared in connection with an attempt to settle or mediate a dispute and remain confidential to the party to the dispute.

The court considered the defendants’ claim to litigation privilege over a number of the Leckie Morrison documents from February 2021, when it is said that litigation was reasonably apprehended. The court considered the defendants’ claim of privilege over material that was copied to Colin Jacobs, the general manager of Drylandcarbon One Management Ltd. The plaintiffs do not accept the defendants’ view that Mr Jacobs acted as an authorised agent of Messrs Morrison and Leckie and Pheasant Tail Holdings Ltd during the relevant time and are of the view that privilege was waived when he was copied in to or involved in communications between the defendants and their legal advisers. The court considered the defendants’ claim of privilege over the Forest Partners documents as belonging to either Pheasant Tail Holdings or the Forest Partners Ltd Partnership arising from Buddle Findlay’s engagement in the establishment of, and their subsequent engagement for, the Forest Partners Ltd Partnership. In the case of two documents, without prejudice privilege is claimed. The plaintiffs say that it is not clear that the communications were both prepared in connection with an attempt to settle or mediate a dispute and remain confidential to the party to the dispute.

The court concluded that most of the claims are properly made, but some are not. The court ruled that the plaintiffs had succeeded in setting aside around 28 per cent of the defendants’ claims of privilege. If parties still wish to seek costs, and cannot agree, they should file a memoranda of no more than 10 pages (including a costs schedule). The plaintiffs are to file their memorandum within 10 working days after delivery of this judgment, and the defendants may respond within a further 10 working days.

Orders