Beverley v DC One H1 Limited
[2024] NZHC 3363
•12 November 2024
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 3363
BETWEEN ANTHONY AND WENDY BEVERLEY & ORS
PlaintiffsAND
DC ONE H1 LIMITED & ORS
Defendants
CIV-2023-485-47 BETWEEN
DRYLANDCARBON GP ONE LIMITED & ORS
Plaintiffs
AND
WILLIAM JAMES WATERHOUSE LECKIE & ORS
Defendants
CIV-2024-485-152 BETWEEN
PHEASANT TAIL HOLDINGS LIMITED
Plaintiff
AND
ANTHONY MONTGOMERY BEVERLEY & ORS
Defendants
Hearing: 2 October 2024 Counsel:
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)
A S Olney, O C Gascoigne and C J Houlahan for Defendants
(CIV-2022-485-157 and CIV-2023-485-47) and for Plaintiff (CIV- 2024-485-152)
Judgment:
12 November 2024
JUDGMENT OF RADICH J
BEVERLEY v DC ONE H1 LTD [2024] NZHC 3363 [12 November 2024]
Table of Contents
Background [3]
A. Plaintiffs’ application for further and better discovery [5]
Legal framework [5]
The touchstone for assessment – the issues in the proceeding [8]
The documents sought [9]
Specific repositories [10]
Documents contained in the personal email accounts of Messrs
Morrison, Leckie and Jacobs [10]
Documents contained on or extractable from mobile phones in thepossession of the defendants [13]
Documents in the possession of third party service providers to the defendants (over whose documents the defendants have power,
possession or control) [15]
Documents stored locally on computers in the possession of the
defendants [18]
Further documents or classes of documents sought for discovery [20] Documents related to the Lewis Tucker resourcing proposal in 2021 [20]
Documents related to the plan to remove Mr Beverley from the
day-to-day business of Drylandcarbon [24]
Communications with Paul Foley [34]
Documents related to the development and marketing of Forest
Partners LP [43]
Documents relating to the offer of equity to Mr Jacobs [75]
Meeting agendas and minutes [89]
Documents relating to the Malvern Hills investigation [99]
Documents relating to the “HortCo” fund [103]
KPMG briefing material [105]
Standalone documents where related documents have not beendiscovered [107]
Documents relating to internal correspondence between the defendants regarding any of the media articles relating to the proceedings [108]
Document preservation orders [109]
Affidavit of document orders [113]
Redactions [118]
B. Plaintiffs’ application to set aside defendants’ claims to confidentiality [125]
Confidentiality arrangements [130]
Relevant principles [135]
Is the information confidential? [140]
Balancing the prejudice to each party [147]
Conclusions [156]
Outcome [157]
C. Defendants’ application for further and better discovery by plaintiff [158] Costs [160]
[1] The plaintiffs1 seek a range of orders for further and better discovery against the defendants2 and to set aside claims to confidentiality made by the defendants over discovered documents.
[2] This decision deals methodically with the many points that are in contention. Orders are made progressively throughout the decision, in italicised font.
Background
[3] The factual background to these three inter-related proceedings is set out in my decision of 23 May 2024 in which I made orders that they should be heard together. I will not repeat it here but, in broad terms, Mr and Mrs Beverley in their own names (in CIV-2022-485-157 – the oppression proceeding) and through a derivative action (CIV-2023-485-47 – the derivative proceeding) bring claims against Mr Leckie and Mr Morrison and entities associated with them relating to the alleged diversion of corporate opportunities from the Drylandcarbon fund (to produce carbon credits for the fund’s investors) in which Messrs Beverley, Morrison and Leckie were all involved, to the Forest Partners fund, which Mr Morrison and Mr Leckie established subsequently. In the Pheasant Tail Holdings proceeding (CIV-2024-485-152) it is claimed that the conduct of the derivative proceeding is such as to have caused oppression.
[4] Wilson Harle were appointed by the Court in September 2023 to conduct discovery on behalf of the plaintiff companies in the derivative proceeding and DC One H1 Ltd in the oppression proceeding.3 The discovery process has been long and complex. Four hundred thousand documents have been searched altogether and, to date, over 35,000 have been discovered. A number of issues remain.
1 The plaintiff companies in CIV-2023-485-47 (the derivative proceeding), the plaintiffs in CIV- 2022-485-157 (the oppression proceeding) and the defendants in CIV-2024-485-152 (the Pheasant Tail Holdings proceeding).
2 The defendants in the derivative and oppression proceedings and the plaintiffs in the Pheasant Tail Holdings proceeding.
3 Drylandcarbon GP One Ltd v Leckie [2023] NZHC 2439.
A. Plaintiffs’ application for further and better discovery Legal framework
[5] The Court has followed a four-stage approach in considering orders for particular discovery under r 8.19 of the High Court Rules 2016. It assesses whether the documents sought are relevant (in other words, material), whether there are grounds to believe that the documents sought exist, and whether the orders sought are proportionate. Finally, it assesses whether the Court should exercise its discretion to make an order, by weighing and balancing those matters.4
[6] The burden falls on the applicant for the orders to establish that the test is made out.5
[7] Put broadly, the Court must consider whether it is in the interests of justice to order the particular discovery sought in light of the issues in the proceeding and having regard to the proportionality and cost of the particular discovery.
The touchstone for assessment – the issues in the proceeding
[8] The application of the relevant considerations just mentioned – materiality, proportionality and the interests of justice – require in the first instance the identification of the primary issues in the proceeding. In this case, they are as follows:
(a)Whether Lewis Tucker, at the direction of Mr Morrison and Mr Leckie, developed and marketed a land and capital carbon farming and afforestation partnership which replicated the Drylandcarbon model.
(b)Whether Mr Morrison and Mr Leckie, in their capacity as directors of the plaintiff companies, had access to information and resources belonging to the plaintiff companies.
4 Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd [2015] NZHC 2760, [2018] NZAR 600 at [14]; Lighter Quay Residents’ Society Inc v Waterfront Properties (2009) Ltd [2017] NZHC 818 at [16].
5 Plumpton v Terry [2016] NZHC 988 at [26].
(c)Whether Lewis Tucker and Mr Morrison and Mr Leckie, in developing marketing materials for the Forest Partners venture, used information and resources belonging to the plaintiff companies or, more generally, shared information of that sort with the defendants, or otherwise to the detriment of the plaintiff companies.
The documents sought
[9] There are two aspects to the plaintiffs’ applications. First, they seek documents within particular repositories held by the defendants and, secondly, they seek discovery of certain further categories of documents.
Specific repositories
Documents contained in the personal email accounts of Messrs Morrison, Leckie and
Jacobs
[10] The defendants say that Mr Morrison and Mr Leckie did not, and do not, use their personal Gmail accounts to send or receive substantive, business-related, emails. They say that Mr Jacobs (the general manager of both Drylandcarbon One Management Ltd (DC external manager) and executive director of Lewis Tucker and Company Ltd (Lewis Tucker)) does not have a personal email account containing discoverable documents.
[11] Messrs Morrison, Leckie and Jacobs have not yet searched their personal email accounts on the basis of the broad approach they have taken, as just described. There is, as I see it, every chance that they sent or received at least some emails relating to the matters in issue in the proceeding over the five-year period in question from those accounts. The fact that targeted, keyword searches can be run across the email accounts means that discovery orders over these accounts would be proportionate.
[12] I order particular discovery of documents contained on the personal email accounts of Messrs Morrison, Leckie and Jacobs that are relevant to the issues in the proceeding.
Documents contained on or extractable from mobile phones in the possession of the
defendants
[13]This aspect of the application is not opposed.
[14] Accordingly, I make an order for particular discovery of documents contained on or extractable from mobile phones in the possession of the defendants which are relevant to the issues in the proceeding.
Documents in the possession of third party service providers to the defendants (over
whose documents the defendants have power, possession or control)
[15] The defendants say that, with the exception of Jonathan Hill (a public and media relations adviser to the defendants), there are no other third party service providers holding discoverable documents in the defendants’ control that have not otherwise been identified in Mr Leckie’s affidavit of documents.
[16] The plaintiffs want to push further. They say that, in circumstances, in which the defendants have agreed to search the documents held by Mr Hill, there must be others. They want an assurance that all third party providers have been asked and have reviewed relevant documents. They say that Mr Hill is not the only third party provider and that documents, for example, from Buddle Findlay and Chapman Tripp have been disclosed in Mr Leckie’s affidavit.
[17] There is no need for any further order to be made here. The defendants have turned their minds to the issue of third party providers. They have discovered documents from relevant providers. The plaintiffs have not identified any particular further documents or documents. The onus is theirs. I do not see grounds to go further under this head.
Documents stored locally on computers in the possession of the defendants
[18]This aspect of the application is not opposed.
[19] Accordingly, I make an order for particular discovery of documents stored locally on computers in the possession of the defendants which are relevant to this proceeding.
Further documents or classes of documents sought for discovery
Documents related to the Lewis Tucker resourcing proposal in 2021
[20] The plaintiffs seek “all documents relevant to the development of the Lewis Tucker resourcing proposal in 2021, and documents evidencing discussions regarding the same”. In [5.1] of Bell Gully’s letter to Mallett Partners of 10 September 2024, upon which this aspect of the application is based, it is said that it appears that documents may be missing in relation to the development of this proposal by reference to Mr Jacobs having been assigned an action item by the DC external manager board in September 2021. It is said that, however, no documents have been discovered in relation to the development of this proposal prior to mid-November 2021 when a memorandum was produced by Mr Jacobs.
[21] The plaintiffs say that the reasonable basis for considering that further documents exist is the dearth of documents discovered in relation to what is said to be a substantial business decision. They say that it is implausible that there were only two emails across a two-month period evidencing internal discussions of the resourcing proposal prior to the development of a detailed memorandum and a slide pack.
[22] There is something to be said for the defendants’ position in opposition that the request speculates as to the existence of additional documents. The defendants say that comprehensive search terms were applied across 19 custodian email accounts. They add that the breadth of additional searches proposed would be disproportionate to the potential value to be recovered. I do not agree. The resourcing of Lewis Tucker is central to the issues that are identified. It is through Lewis Tucker that it is alleged (and the focus does need to be on the plaintiffs’ allegations) that the Forest Partners fund was developed. The resourcing of the proposal is front and centre when considering the issues. It seems unusual that there would be so few documents on the topic in light of the content of the documents that had been disclosed. I do not see that
running keyword searches for “Lewis Tucker resourcing proposal” or “resourcing proposal” across the custodian email accounts would be disproportionate.
[23] I make an order for particular discovery of all documents relating to the development of the Lewis Tucker resourcing proposal in 2021, and documents evidencing discussions about the proposal. Discovery is to be provided by running keyword searches for “Lewis Tucker resourcing proposal” and “resourcing proposal” across relevant databases.
Documents related to the plan to remove Mr Beverley from the day-to-day business
of Drylandcarbon
[24]Five subcategories of documents are sought under this head.
[25] The first is an email “apparently preceding” Paul Foley’s email to Christopher Morrison of 16 February 2021. This aspect of the application is not opposed. However, the plaintiffs believe that it is still necessary for an order to be made.
[26]I make an order accordingly.
[27] The second, third and fourth subcategories all relate to aspects of an alleged plan to remove Mr Beverley with reference to particular email exchanges on the topic. The plaintiffs believe that there must be further communications on the issue. The defendants say that these requests have been resolved. They say that they have searched for and have been unable to identify any further discoverable documents in this category and that Mr Leckie’s finalised and sworn affidavit will provide details of the nature of the further searches.
[28] I accept the defendants’ position. There is no basis that I can see that would enable an inference that further documents exist. All relevant documents under this head have been sought. The defendants accept this to be a relevant topic for discovery and say that they have conducted searches accordingly. The plaintiffs are unable to point to any further particular documents they see as being relevant here.
[29]No order is necessary under the second, third and fourth subcategories.
[30] The fifth subcategory under this head relates to an email from Mr Morrison to Mr Foley which has put the plaintiffs on inquiry as to the potential existence of a range of related communications. For example, the email refers to a “business case” (which the plaintiffs now seek), raises the prospect of there having been related communications with third parties and related parties and is in such terms that the plaintiffs believe that a response to it would have been received.
[31] The defendants oppose any disclosure under this head. They say that the correspondence referred to by the plaintiffs was discovered by Wilson Harle and constitutes a mistaken disclosure of privileged material (subject to both without prejudice and litigation privilege).
[32] I accept the claim to privilege. This document forms part of a sequence of correspondence. Disclosing the sequence of correspondence and the documents referred to in the correspondence would, I accept, implicitly or indirectly disclose legal advice. While claims to privilege over a range of documents in this proceeding are subject to a separate, on the papers, process to be conducted by Boldt J on the basis that he will inspect the documents in question, this document, which does appear to have been discovered mistakenly, can be assessed on this application. Alongside solicitor-client privilege, the documents in question do appear to be related to structuring Mr Beverley’s exit from the business with knowledge that the commencement of litigation was likely.
[33]No further disclosure is appropriate under this subcategory.
Communications with Paul Foley
[34] Under this head, the plaintiffs focus on an email from Mr Leckie to Mr Morrison dated 15 March 2020 proposing edits to a draft email to send to Paul Foley about the “arrangement with Mr Beverley”. Further documents are sought including a final copy of any emails sent to Mr Foley. A subsequent email chain, dated 9 July 2020, is identified also in relation to communications with Mr Foley. Further correspondence with Mr Foley is sought as a consequence.
[35] The defendants do not oppose searching for and, if available, disclosing a final copy of the draft email from Mr Morrison to Mr Foley dated 15 March 2020 and any other documents relating to it.
[36]I make an order accordingly.
[37] However, the defendants oppose the other aspects of this request on the basis that, to the extent that any communications with Mr Foley were in writing, there is no reasonable basis to consider that they would not have been captured by the comprehensive searches applied by the defendants.
[38] The defendants make reasonable points here. However, the email chain in question does form a foundation to say that there are likely to have been further, related communications. It is not clear that the search terms and parameters applied by the defendants (as described in their submissions) would pick up these communications.
[39] Accordingly, I make an order for particular discovery of communications with Mr Foley relating to the request that he join a meeting (as referred to in the email from Mr Morrison dated 9 July 2020) between Messrs Morrison, Leckie and Beverley regarding the proposed Drylandcarbon restructure.
[40] The plaintiffs seek further categories of documents under this head; essentially interactions between the defendants and Mr Foley relating to “the advent of Forest Partners”. The defendants say they have discovered a number of documents relating to Mr Foley’s involvement in the advent of Forest Partners. Beyond that, they say that Mr Foley’s involvement in Forest Partners and Drylandcarbon is limited to his capacity as the independent chair of the advisory committee and that his involvement in the shareholder breakdown in Drylandcarbon is a different matter from Lewis Tucker’s pursuit of a new carbon afforestation fund.
[41] I do not see distinctions of that sort as being relevant in circumstances in which, from the content of the emails that have been discovered, it seems sufficiently clear that there have been communications between the defendants and Mr Foley that relate to the issues that have been identified in the proceeding. It would appear to be the
case that there were email communications with Mr Foley prior to the first communication with him, in December 2021, that was discovered relating to Forest Partners.
[42] Accordingly, I make an order for particular discovery on the part of the defendants of all interactions between them and Mr Foley relating to the advent of Forest Partners, to his interest in being involved with the advisory committee of that partnership and which are otherwise relevant to the matters in dispute.
Documents related to the development and marketing of Forest Partners LP
[43]Sixteen subcategories of documents are sought under this head.
[44] The requests all stem from documents provided in discovery relating to forestry site visits organised by Mr Morrison and Mr Leckie for individuals from Todd Corporation in 2021. Reference is made in a document to a site visit in Marlborough in August 2021 and to a site visit in the Wairarapa in November 2021.
[45] The plaintiffs say that the material sought is directly relevant because the manner in which Forest Partners was developed and marketed is at the centre of the derivative proceeding. However, I accept the defendants’ point that the relevant pleaded issues are whether information and resources of the plaintiff companies were used in developing marketing materials for the Forest Partners venture and whether Forest Partners replicated the Drylandcarbon model. Discovery cannot extend to everything that Forest Partners did in the course of establishing its operations. The organisation of site visits for prospective investors is beyond the scope of the issues in the proceeding and the documents sought would not support or adversely affect any party’s case in terms of r 8.7. No order will be made under subcategory (a).
[46] The same outcome will apply to subcategory (b) under this head – “any correspondence consequent on the abovementioned site visits by Todd Corporation representatives, including feedback from Todd Corporation on those visits”.
[47] Accordingly, no orders are made for the documents sought in subcategories (a) and (b).
[48] Subcategory (c) is “all documents relating to ‘unsolicited inquiries’ from emitters to Lewis Tucker relating to those emitters ‘wanting to gain access to DCL1 and/or exposure to subsequent vehicles’ as referred to in Lewis Tucker’s initial investor discussion document dated 7 July 2021”. Disclosure under this category is not opposed by the defendants.
[49] Accordingly, I make an order for particular discovery by the defendants of the documents in this subcategory.
[50] Subcategory (d) is correspondence relating to setting up meetings with Rabobank in 2021 and 2022 to discuss forestry, and drafts of the presentations prepared for these meetings.
[51] The defendants say that they have searched for and have been unable to identify any further documents in this category. The detail and nature of those searches will be addressed in Mr Leckie’s finalised and sworn affidavit of documents. Nothing further is needed from the Court under this head.
[52]No order for discovery is made under subcategory (d).
[53] Subcategory (e) is minutes or other evidence relating to the conversation between Mr Leckie and Mr Russon (referred to in Mr Leckie’s email of 2 September 2021) attaching Lewis Tucker’s investment flyer and the annual review for Drylandcarbon and correspondence from Mr Russon in reply.
[54] The plaintiffs say that it appears that Mr Russon was a strategic adviser to Messrs Morrison and Leckie and the plaintiff companies and that he chaired and/or facilitated at least two strategy meetings. They say that an inference is available that he would have been consulted further.
[55] The defendants have searched for and have been unable to identify any response from Mr Russon to Mr Leckie’s 2 September 2021 email. I accept that there are no reasonable grounds to consider that minutes were made of the relevant
conversations or to show that he was involved in any particular way in developing Lewis Tucker projects.
[56]There is no appropriate basis for an order to be made under this head.
[57] Subcategory (f) is “all documents relating to initial discussions with Todd Corporation in or before April 2021 about how Lewis Tucker can help Todd Corporation with using ‘forestry as a carbon sink’ ”.
[58] I agree with the defendants that there is no reasonable basis to consider that there is additional correspondence with Todd Corporation representatives to be discovered.
[59]No order is appropriate under this head.
[60] Subcategory (g) is “any reply from Todd Corporation representatives to Mr Morrison’s email of 21 April 2021”. The defendants do not oppose this request.
[61] Accordingly, I make an order for particular discovery by the defendants of any reply from Todd Corporation to Mr Morrison’s email of 21 April 2021 in relation to how Lewis Tucker can help Todd Corporation with its next steps.
[62] Subcategory (h) is “any minutes of, or internal correspondence discussing, the meeting between Messrs Foster, Morrison and Jacobs on 8 June 2021”.
[63] The plaintiffs say that it is reasonable to inquire whether there are any notes relating to the meeting. The defendants say that there are no reasonable grounds to infer or consider that minutes were made of this “catch up”. As to notes generally, it is said that several of Mr Leckie’s notebooks have been searched with discoverable material to be disclosed. Additional notebooks have been identified and are being reviewed. Mr Morrison is described as not being a regular notetaker and Mr Jacobs’ notebook is maintained primarily for to-do lists and agenda items.
[64] In all of these circumstances, I do not see any basis for an order to be made under this head.
[65] Subcategory (i) is “evidence of the call with Pauline Martin in the week of 11 October 2021 to discuss the investment in “Project Green” and any minutes of this call or any internal Lewis Tucker correspondence discussing the call”.
[66] The defendants accept that the substance of discussions with Ms Martin may be relevant but, as with subcategory (h), they say that there are no reasonable grounds to believe (in the light of comprehensive searches that have been made) that the call with Ms Martin was formally scheduled or that there is any material recording it or otherwise relating to it. That is a tenable position. Accordingly, there are no reasonable grounds to conclude that the documents sought exist.
[67]No order will be made under this head.
[68] Subcategory (j) is “any internal correspondence discussing the need for the call between Messrs Norris and Bahirathan regarding “Project Green” and any notes from this call/meeting”.
[69] The position on this subcategory is the same as that for the last two. There is no reasonable basis to consider that there is any correspondence of this type. The defendants confirm that searches conducted to date would have captured it, had it existed. They agree that any further search would be disproportionate to the potential value to be received.
[70]No order will be made under this head.
[71]Requests relating to subcategories (k), (l) and (m) have been resolved.
[72] Subcategory (o) is “confirmation and evidence of the documents sent to Mr Foster in advance of Mr Foster’s email of 19 April 2021”. The defendants say that this is not a proper request for further and better discovery but a request for confirmation that the defendants sent materials to Mr Foster. I think it can properly be seen as a request for the documents sent to Mr Foster. Mr Foster was a potential investor. The request is relevant.
[73] Accordingly, I make an order for particular discovery by the defendants of documents sent to Mr Foster in advance of Mr Foster’s email of 19 April 2021.
[74]The request relating to subcategory (p) has been resolved.
Documents relating to the offer of equity to Mr Jacobs
[75] Eleven subcategories of documents are sought within this category. The requests under this head stem from an email from Mr Leckie to Mr Morrison dated 10 November 2020 which attaches a draft letter to Mr Jacobs with the subject line “Letter of understanding Lewis Tucker equity”. The draft letter refers to an intention, amongst other things, to offer Mr Jacobs a shareholding in Lewis Tucker and makes mention of an employee share scheme that Mr Morrison has “offered Matt and Tom”. The email gives rise to a range of requests and questions from the plaintiffs.
[76] Subcategory (a) is “All iterations and/or drafts of Lewis Tucker’s employee share scheme as referred to in the draft letter of understanding to Mr Jacobs in November 2020”. The plaintiffs say that the manner in which Mr Morrison and Mr Leckie used Drylandcarbon resource, including Mr Jacobs and his knowledge and time as a Drylandcarbon employee to develop Forest Partners, is central to the dispute. Accordingly, it is said, it will be relevant to know when, and the terms on which, Mr Jacobs was offered equity.
[77] I agree that the way in which Messrs Morrison and Leckie may have used any Drylandcarbon resource, including Mr Jacobs, to develop Forest Partners is a central issue. But I cannot see the way in which an employee share scheme is relevant to that. Evidence will be available that establishes when, and the way in which, Mr Jacobs became involved with the Forest Partners venture, alongside the Drylandcarbon venture. However, I agree with the defendants that there is nothing in the material discovered to suggest that the offer to Mr Jacobs was incentivised in some way by reference to the establishment of Forest Partners.
[78]There will be no orders under this head.
[79]The requests for discovery under subcategories (b) to (f) have been resolved.
[80] Subcategory (g) is “All documents relating to the process by which Mr Jacobs was offered and took equity in certain of the defendant companies”.
[81] For similar reasons as those given in relation to subcategory (a), I do not see that the process by which Mr Jacobs, separately, was offered and took equity bears any connection to Mr Beverley’s alleged removal from the Drylandcarbon companies or with the primary issues in the proceeding. It is in my view a side issue that will only deflect, inefficiently, attention away from a proper consideration of the identified issues in the proceeding.
[82]There will be no orders under this head.
[83] Subcategory (h) is “All emails with Brian Henderson (Rabobank) and any further correspondence relating to the matters of the ultimate ownership of Forest Partners preceding or consequent on the email to Mr Henderson of 14 September 2022”.
[84] The plaintiffs say, in relation to this subcategory, that documents which relate to the process by which Mr Jacobs was offered and took equity in Lewis Tucker and the Forest Partners companies are relevant to the issues in dispute. That is true in some respects (as covered already) but there is no sufficient connection drawn between that concept and the documents that are sought here. I can only agree with the defendants that the material in this category is not discoverable in accordance with r 8.7 of the High Court Rules and that the ownership structure and make-up of Forest Partners is not in issue in the proceedings.
[85]There will be no orders under this head.
[86] Subcategory (i) is “A copy of the attachment to the email to Mr Henderson on 14 September 2022”. This item appears to have been resolved by the defendants’ description of the way in which the documents were provided to Wilson Harle and listed by the defendants accordingly.
[87] Subcategory (j) is “All documents relating to the ‘employee buy-in vehicle’ referred to in the wire diagram” in a particular document and subcategory (k) is “documents related to the exchange with Mr Henderson and similar exchanges”. The plaintiffs say that these documents are relevant to the issues in the proceeding. That is so, but it is not helpful to identify a document that is relevant and to then ask for “all documents relating to it”. There is no sufficient basis to say that there are any such documents and it is essentially asking for the discovery exercise to be repeated. That is not in my view a proportionate approach.
[88]No orders are appropriate under these heads.
Meeting agendas and minutes
[89] The defendants have discovered a number of documents entitled “Lewis Tucker weekly agendas”. The plaintiffs say that there are 19 weekly agendas from 2018, two from 2019 and that none from any time thereafter that have been discovered. They refer also to an agenda for a Lewis Tucker offsite strategy session to be held on 29 January 2021 in Martinborough. They refer to comment bubbles on the agenda which, it is said, demonstrates that there must have been previous iterations of the document. Several requests are made as a consequence.
[90] Subcategory (a) under this heading is “All Lewis Tucker weekly agendas not already discovered for each week of each year”.
[91] The defendants say that there is no reasonable basis to consider that any additional weekly agendas are discoverable in accordance with r 8.7 as they would have been identified already and that they are not discoverable per se in any event.
[92] However, in circumstances in which Lewis Tucker is a named defendant and in which allegations are made that it and its directors facilitated the diversion of a corporate opportunity, I see the weekly agendas as being relevant. When and in what manner Lewis Tucker began developing the proposal which became Forest Partners is what the proceedings are all about. The general sequence of Lewis Tucker’s development, and the things that it did along the way, will generally be relevant to the proceeding – subject to appropriate redactions for confidentiality which should,
however, not include subject matter headings. The agendas will ‘tell the story’ of Lewis Tucker’s development. That is directly on point.
[93] The second subcategory under this head is related to the first. It is “All documents relating to Lewis Tucker’s strategy sessions”. Under that head, further subcategories of documents are sought, including “correspondence, drafts, communications and other documents relating to the offsite strategy session held on 29 January 2021” and “all documents relating to the Lewis Tucker strategy meeting held on 21 May 2021” and “all agendas, minutes and other documents relating to other Lewis Tucker quarterly strategy meetings”.
[94] While, as I have said, an understanding of the matters covered in Lewis Tucker meetings, including strategy meetings, is relevant, the ambit of the documents sought under this head is far too wide.
[95] Some of the documents are certainly relevant. That is demonstrated, just for example, by an appendix to the January 2021 strategy session which sets out recent comments made by third parties, one of which is in the following terms: “After DLC, let’s do DLC Two”. The Forest Partners fund was said to have been seen, by third parties as well as internal parties, as an evolution of the Drylandcarbon fund. The way in which that happened is relevant to the proceeding and Lewis Tucker’s discussion of it will, therefore, relate directly to the issues.
[96] A further example is provided by minutes of the Lewis Tucker strategy meeting of 21 May 2021. Reference is made in the minutes to the “minutes of last meeting” and to “actions from last meeting”. The question arises as to the whereabouts of those minutes – and of others – when, as it is understood, the strategy meetings were quarterly.
[97] Relevance would not be framed only by content in these documents describing a second fund. The way in which Lewis Tucker developed, established and operated the second fund will be relevant also. Therefore, to the extent that documents relate to that, they will discoverable. However, not all documents relating to these meetings will be relevant. All manner of documents caught by the descriptions in this
subcategory are likely to be irrelevant – including, for example, administrative and travel arrangements. But documents that explain the business that Lewis Tucker was looking to undertake will be relevant.
[98] Accordingly, I make an order for particular discovery by the defendants of all Lewis Tucker weekly agendas not already discovered and for particular discovery by the defendants of documents relating to Lewis Tucker’s strategy sessions to the extent that they describe the subject matter discussed at those meetings and the proposed business of Lewis Tucker – with appropriate redactions for commercially sensitive material but on the basis that redactions should not exclude subject matter headings unless the headings themselves are confidential.
Documents relating to the Malvern Hills investigation
[99] Documents are sought under this head that are relevant to the preparation of a report into the investigation of the acquisition of Malvern Hills by the Drylandcarbon Limited Partnership, including any communications between the directors (Messrs Morrison, Leckie and Beverley) and Mr Jacobs. The plaintiffs have identified certain documents that have been discovered and say that it is apparent that there are gaps, for example, communications that led to changes made and the underlying material used in writing the report.
[100] The defendants say that the plaintiff companies have discovered relevant documents relating to the investigation and that there is no reasonable basis to consider that they have failed to provide all relevant documents. To the extent, they say, that there are any gaps in the material that Mr Jacobs collated, then that is a matter to be raised with Wilson Harle. They say, in addition, that the plaintiffs have failed to establish that there are reasonable grounds to believe that any particular further documents exist.
[101] I agree with the defendants’ position. There is nothing in particular here that can be pointed to that would form the basis for an order. An order of the type sought would in any event, in my view, be disproportionate in all of the circumstances.
[102]Accordingly, no order is made under this head.
Documents relating to the “HortCo” fund
[103] The plaintiffs point to documents which relate to the establishment of a potential fund referred to as the “HortCo fund” and to a further, separate “Harvest” fund. The plaintiffs say that even if Lewis Tucker did not progress this fund – or these funds – that does not relieve it of its obligation to discover relevant documents. However, there is no basis to establish the existence of further relevant material. The documents referred to a discussion and a meeting.
[104]I do not see any basis for an order to be made under this head.
KPMG briefing material
[105]The order sought under this head is not opposed.
[106] Accordingly, I make an order for a particular discovery by the defendant of all briefing material (including internal drafts) provided to KPMG in relation to the calculated value assessment conducted of Pheasant Tail Holdings Ltd’s interest in DC One H1 Ltd in 2022 and of all briefing material (including internal drafts) provided to KPMG in respect of the calculated value assessment conducted of Pheasant Holdings Ltd’s interest in Lewis Tucker FP Management Ltd in 2024.
Standalone documents where related documents have not been discovered
[107] There are eight discrete requests for further discovery under this heading. I deal with each in turn:
(a)Any responses to an email from Mr Jacobs of 10 June 2021 registering a dispute under the services level agreement between Drylandcarbon One Management Ltd and Glazebrook Capital Ltd. The plaintiffs say that there is an “inherent improbability that the matter was not contemplated further in correspondence. That is insufficient to maintain this request. I do not go behind the defendants’ position that the plaintiff companies have discovered material relating to the dispute and that there is no reasonable basis to consider that the defendants have
failed to provide anything that is relevant. No order is made under this head.
(b)Any further documents relating to the draft email to Paul Beverley prepared on 8 September 2022 including any final version that may have been sent and any response. The defendants says that the draft email was not sent to Paul Beverley and that there are no further discoverable documents in relation to it that have been identified. They will detail the nature of further searches carried out in Mr Leckie’s finalised and sworn affidavit of documents. No order is appropriate under this head.
(c)The “earlier note” referred to by Mr Norris in his email to Mr Morrison and Mr Leckie on 7 April 2022. Disclosure of the “earlier note” is not resisted by the defendants. Accordingly, I make an order for particular discovery by the defendants of the “earlier note” referred to by Mr Norris in his email to Mr Morrison and Mr Leckie on 7 April 2022.
(d)The attachment to Mr Leckie’s email to Mr Foster titled “Tax advice – Project Green” dated 7 November 2021. The plaintiffs say that privilege in this advice has been waived. However, I accept that it remains subject to solicitor/client privilege held by Lewis Tucker but on the basis that it was shared with representatives from Todd Corporation and Fonterra on a common-interest basis as prospective investors in the Forest Partners venture and with no wider waiver of privilege. No order is made under this head.
(e)All documents related to the genesis of the request, and the request itself, to remove Dryland Native Ltd from the company register, including the request referred to and any preceding discussion regarding the approach to IRD and related correspondence. This request is inappropriate. The fact that Dryland Native Ltd has requested that it be removed from the register in June 2022, after the relevant events in the case, tells us nothing about the issues. It is not enough to
ask to look at a range of documents to see if they are relevant. It is not appropriate for any order to be made under this head.
(f)All communications with Liese Belgrave and all other internal documents relating to Mr Harty’s email to Ms Belgrave on 9 February 2022. The plaintiffs say that it is “impossible” that this email was sent by Mr Harty without prior context and correspondence. That is not a sustainable proposition. There is no way of knowing what preceded or post-dated that email. What can be said is that, as the defendants explain, Wilson Harle was granted unfiltered access to the contents of Mr Phillips’ Drylandcarbon email account such that it is reasonable that any related correspondence would have been identified by Wilson Harle. I make no order under this head.
(g)Confirmation that the defendants are aware of the proposal for a services level agreement with “[Terrain Operations Ltd]” and whether they possess any documents in relation to it. Again, it is not appropriate to identify a discovered document and ask for any further documents relating to it. Other relevant documents would have been captured in the process undertaken by the defendants. I make no order under this head.
(h)Any response or any discussions or correspondence discussing a response to Ms Stephen’s email of 2 March 2022. The same approach applies to that taken in relation to subcategory (g) above. No order is made.
Documents relating to internal correspondence between the defendants regarding any
of the media articles relating to the proceedings
[108] Discovery of material under this head is not opposed by the defendants. Accordingly, I make an order for particular discovery by the defendants of any internal correspondence between the defendants relating to any of the media articles relating to the proceedings.
Document preservation orders
[109]The plaintiffs seek an order that:
The defendants refrain from destroying hard copy notes potentially related to the matters in dispute in the proceeding in the possession of Messrs Morrison and Jacobs and any other staff who possess or make hard copy notes.
[110] The order is not necessary. A preservation of property order under r 7.55 of the High Court Rules can be made where the property in question is in issue in the substantive proceedings.6 Hard copy notes are not in issue in the proceedings. The defendants have confirmed to the plaintiffs that “all reasonable steps have been taken to preserve documents (hard copy and electronic) that are, or are likely to be, discoverable”. In addition, Mr Leckie confirmed in his affidavit of 20 September 2024 that, for the avoidance of doubt, this confirmation necessarily extended to preventing the destruction of documents likely to be discoverable. It reflects the defendants’ obligation to take all reasonable steps to preserve documents that are reasonably likely to be discoverable under the High Court Rules.
[111] The plaintiffs’ concerns relate to the practice of Mr Morrison and Mr Jacobs of destroying hard copy notebooks when they are finished with them – although their current notebooks have been reviewed for relevance.
[112] There is nothing in my view that would warrant the Court making any orders under this head.
Affidavit of document orders
[113]The plaintiffs seek the following order:
Messrs Morrison and Leckie be required to provide separate affidavits of documents, one of which identifies the documents being discovered by each of the corporate defendants.
[114] Mr Leckie provided an affidavit of documents on behalf of himself and Mr Morrison. The plaintiffs say that they should be required to provide separate affidavits. A requirement of this sort, it is said, is apparent from r 8.7 of the High Court
6 Phillips v Cogger [2024] NZHC 2503 at [8] and [9].
Rules which provides that “each party” is “to disclose the documents that are or have been in that party’s control”.
[115] In James Hardie New Zealand Ltd v White, the Court of Appeal found that, because the defendant companies had collaborated in the provision of discovery, they each had control of all relevant documents to be discovered such that a single affidavit of documents may be filed on behalf of more than one party given in particular that no useful purpose would be served by requiring each of them to produce an affidavit of documents.7
[116] Nevertheless, in the particular circumstances of this case, involving (amongst others) individual defendants and documents held by them individually, and on personal repositories, I can see the importance of individual affidavits. Mr Morrison need not provide a full affidavit that repeats the schedules contained in Mr Leckie’s affidavit but he should make an affidavit which cross-references Mr Leckie’s affidavit and which makes the points in paras 1, 2, 3, 4 and 5 of form G37 in sch 1 of the High Court Rules, relating to affidavits of documents.
[117]I make an order accordingly.
Redactions
[118] The plaintiffs say that the defendants’ approach to redactions raises concerns about the completeness of the discovery provided in circumstances in which documents have been redacted prior to their provision by the defendants to Wilson Harle. And they say that redactions applied to documents discovered by the defendants themselves are unexplained.
[119] After the plaintiffs raised the issue with the defendants, the defendants reviewed the documents again and have provided Wilson Harle with eight unredacted documents. The plaintiffs’ concerns remain.
7 James Hardie New Zealand Ltd v White [2020] NZCA 142, (2020) 25 PRNZ 691.
[120] There is no question but that parties are entitled to apply redactions to discovered documents to mask irrelevant content8 and to mask privileged material in documents that contain a mixture of privileged and non-privileged material.9
[121] The defendants say that redactions have only been applied to the documents disclosed to Wilson Harle on behalf of the plaintiff companies to mask privileged material (where the interest in the privilege does not belong to the plaintiff companies) or confidential and irrelevant material (where the interest in the confidentiality does not belong to the plaintiff companies). They say that redactions have only been applied to documents discovered by the defendants themselves to mask privileged or confidential and irrelevant material.
[122] Of the 72 documents that remain redacted, 36 are challenged by the plaintiffs. The defendants have explained that the redactions applied to the 36 documents fall into three categories:
(a)In 24 of the documents, the redacted material concerns Lewis Tucker’s separate corporate advisory business.
(b)For 12 documents, the redacted material contains irrelevant aspects of Forest Partners that is nonetheless confidential to the Forest Partners partnership. It does not relate to the issues in the proceeding. The material contains, in particular, information about capital recycling updates, divestment status updates and other business-as-usual correspondence.
[123] There is no basis for the Court to go behind the explanations. They are reasonable on their face. An inference to the contrary will not suffice. Neither will suspicion or a wish to have a look to be sure.
[124]No orders are warranted in relation to the redactions that have been applied.
8 Minister of Education v IT Architects Ltd [2014] NZHC 1541 at [30]–[32].
9 High Court Rules, r 8.28(2).
B. Plaintiffs’ application to set aside defendants’ claims to confidentiality
[125] The plaintiffs have sought orders that the defendants’ claims to confidentiality (and attending restrictions on inspection) over documents designated as “counsel/expert” in pt 3 of Mr Leckie’s affidavit of documents be set aside or modified under r 8.25(1) of the High Court Rules.
[126] The plaintiffs say that the defendants’ approach to restricting access to confidential documents has been imprecise, overbroad and inconsistent. They say that prejudice has been caused to them, which overrides any prejudice that might come from the release of the documents, with the Beverleys being unable to view large numbers of documents and resulting in what is said to be significant costs through engaging with the defendants’ approach to confidentiality.
[127] Broad orders are sought setting aside the existing claims to confidentiality and requiring the defendants to “properly articulate and justify any claims to confidentiality they wish to maintain within those categories”. And an order is sought that the Beverleys be permitted to review, under strict rules and supervision, material within the categories that are currently described as “negotiation documents”, “implementation documents” and “operational documents”.
[128] The defendants in providing overall context to their response on this application, point to the complexity of the discovery exercise involving – as I have mentioned already – approximately 400,000 searched documents and 35,000 discovered documents. Since the beginning of May this year, the parties have, largely, been consumed with the discovery process including through reviewing tranches of documents received from Wilson Harle, agreeing upon the terms of a draft confidentiality protocol, dealing with privilege in documents reviewed by Wilson Harle and considering confidentiality issues.
[129] Confidentiality designations needed to be made across two discovery sets (the defendants’ and the plaintiff companies’). For that reason, the defendants say that their position has always been that they will consider requests to redesignate documents for confidentiality, within the framework that has been established, on a case-by-case basis. They say that, consistent with that position, in response to requests or queries
– and proactively – they have redesignated the confidentiality status of some documents. They say that the costs that would be involved in the approach pursued by the plaintiffs would be disproportionate to the number of discoverable documents in the proceedings.
Confidentiality arrangements
[130] The defendants identified four categories of documents that required confidentiality protections. The protections operate on the basis that the plaintiff companies’ legal advisors and experts would have access to all documents and, if they considered that it was necessary to advance the plaintiff companies’ case that Mr Beverley have access to particular documents, they could raise that on a case-by- case basis. These documents are referred to as the “counsel/expert documents”. The defendants say that the arrangements, just described, for this category are important because Mr Beverley is a direct competitor with Lewis Tucker and that the content of the documents sought would essentially provide him with a handbook to enable him to set up a competing carbon afforestation fund.
[131] A confidentiality protocol, entered into between the parties on 18 July 2024, gave effect to the arrangements. The four categories of counsel/expert documents used by the defendants10 are these:
(a)Category 1: documents relating to Lewis Tucker’s engagement by Landcorp/Pāmu in 2017/2018 to review its forestry portfolio and to advise on carbon farming and production opportunities.
(b)Category 2: initial discussions and negotiations with prospective investors in Forest Partners.
(c)Category 3: incorporation and implementation of the Forest Partners Limited Partnership and the associated management entities.
10 Established in a letter for the defendants of 27 June 2024 and identified at the time in Mr Leckie’s unsworn discovery affidavit.
(d)Category 4: operation and management of the Forest Partners’ carbon afforestation fund.
[132] Correspondence followed between the parties on the prospect of redesignating a number of documents over which confidentiality was claimed. In an affidavit, Mr Leckie agreed that 34 of the 265 documents sought to be redesignated should be redesignated as “commercially sensitive” (the six of which were agreed to be redesignated as “open”), and 23 documents could be redacted (and labelled as “commercially sensitive”. Further explanations were given as to the basis for the confidentiality claims in documents in each of the four categories referred to above including that:
(a)Category 1 contains material belonging to Landcorp and which it considers to be confidential and does not consent to disclose.
(b)Categories 2 to 4 contain material and modelling used for pitches with clients and prospective clients, material that was subject to non- disclosure agreements and confidentiality restrictions at the time and which were commercially valuable to a competitor looking to set up a carbon afforestation fund.
(c)Category 3 contains correspondence relating to Lewis Tucker’s approach to identifying and evaluating potential investments and detailed confidential information originating from clients of Lewis Tucker.
(d)Category 4 contains confidential information such as board materials, agendas, reports and minutes created only recently.
[133] It is said that, aside from a handful of instances, Mr Leckie’s evidence on these points has not been challenged. Rather, the approach taken by the plaintiffs has been to challenge the status of subsets of documents as a whole in an attempt to undermine the protection for all documents.
[134] The issue that arises, therefore, is whether the defendants’ approach to confidentiality as a whole is such that the claims to confidentiality should be set aside with directions of the type proposed by the plaintiffs in their application.
Relevant principles
[135] A three-stage inquiry, involving a careful balancing exercise, will apply to the assessment of confidentiality in the discovery process.11 The stages are these:
(a)determining whether the information in question is confidential;
(b)determining whether there is a risk of prejudice from the disclosure of the documents; and
(c)determining whether that prejudice is overborne by the prejudice to the other party in preparing their case.
[136] In this way, the interests of justice in ensuring that a party is able to prepare and present its case must be balanced against the interests of the other party in safeguarding its confidential information.
[137] In a practical sense, under r 8.15(2)(f) of the High Court Rules, a party must in its affidavit of documents explain any restrictions proposed to protect the claimed confidentiality of any document and it must, under r 8.16(1)(c), explain the nature and the extent of the confidentiality.
[138] Having established a basis for the confidentiality (accompanied often with the likes of a confidentiality protocol or undertaking) a party wishing to challenge the confidentiality claimed needs to do so on a document-by-document basis.12
[139] I agree with the defendants that it is not sufficient to seek a blanked de- designation over an entire set of confidential documents. Rather, on a case-by-case
11 See, for example, Intercity Group (NZ) v Nakedbus NZ Ltd [2013] NZHC 2261 and Payment Express Ltd v Paymark Ltd [2019] NZHC 2027.
12 Port Nelson Ltd v Commerce Commission (1994) 7 PRNZ 344 (CA) at 347–349 and Payment Express Ltd v Paymark, above n 11, at [16] and [21].
basis the counter-party needs to establish that the prejudice to it outweighs the prejudice to the party seeking to preserve the confidentiality.
Is the information confidential?
[140]The plaintiffs challenge the claims to confidentiality in broad terms.
[141] First, they say that the defendants’ approach appears to be inconsistent with the careful justifications required by the rules and are the result of efforts to find a pragmatic way of proceeding.
[142] Secondly, it is said that the defendants have indicated that they are awaiting notification by the plaintiffs to alert them of any discrepancies. This, it is said, is contrary to the approach that must be taken to the rules under which it is incumbent that the party seeking confidentiality provides justification.
[143] Thirdly, it is said that Mr Leckie’s affidavit implicitly acknowledges shortcomings in the defendants’ approach through, in broad terms, explaining in his affidavit the complexity of implementing confidentiality protections and adopting an unnecessarily cautious approach as a result.
[144] Fourthly, the plaintiffs do not believe it to be clear that the defendants have undertaken a reassessment of all of the documents over which confidentiality is claimed in sufficient detail. The plaintiffs complain that a reassessment took place only after significant correspondence, the effect of which is that approximately 151 documents designated originally as counsel/expert have now been assigned lesser restrictions while, on the other hand, approximately 121 documents designated originally as open or commercially sensitive have had more onerous restrictions applied to them.
[145] It is sufficiently clear to me from the evidence that the defendants and their counsel have reviewed sufficiently carefully the documents both at the time of discovery and subsequently following a comprehensive review, and that the basis for the claims to confidentiality have been established sufficiently.
[146] Issues raised by the plaintiffs, with reference to selected documents, do not form a basis for blanket redesignations.
Balancing the prejudice to each party
[147] The plaintiffs say that the prejudice that arises for them as a result of the restrictions imposed is their inability properly to instruct their counsel in the proceeding. It is said that Mr Beverley’s day-to-day involvement with Drylandcarbon means that his inability to view documents, where a key issue is whether the defendants misused Drylandcarbon information in establishing the new fund, is prejudicial to the Beverleys’ ability to assist the plaintiffs in advancing their case.
[148] Their position is that the person who in the best position to assess the similarity or otherwise of the two funds is Mr Beverley. The plaintiffs say that, while counsel are themselves able to identify similarities between the two funds, they are constrained in the face of more complex material, where similarities may not purely be visual – in the case of modelling and calculations, for example.
[149] The plaintiffs point to information contained within the discovery that has been made available to the plaintiffs which is said to cast doubt on the defendants’ case and on Mr Leckie’s evidence when it is said that the modelling used for Forest Partners was developed by, and confidential to, Lewis Tucker.
[150] That evidence, some of which refers for example to leveraging the skill sets, IP and brand of Drylandcarbon to raise a second fund through Lewis Tucker, is material but I do not know that it advances the plaintiffs’ case on this point to the effect that Mr Beverley himself is needed to identify relevant information.
[151] The reality is that Mr Beverley is a competitor to Lewis Tucker. Both operate in an industry that is small and highly technical. Any of the documents in question, on their face, contain confidential information belonging to third parties or relate to Lewis Tucker’s business strategy and ongoing opportunities. In practice, certain types
of information are simply incapable of being “mentally ring-fenced” from being used in contexts outside the litigation due to a confidential document’s strategic value.13
[152] Ultimately, I accept the defendants’ position that blanket disclosure would be highly prejudicial to Lewis Tucker such as to give rise to inherent unfairness. Although some of the material over which confidentiality has been claimed is several years old, I accept Mr Leckie’s point that the niche, technical nature of the industry and the small number of potential clients means that information that is nominally dated remains highly relevant to a competitor.
[153] Redactions have been agreed to where possible and appropriate but it does remain the case that, in most instances, it will not be feasible to proceed through redactions because of the fact that the confidential information is intertwined with non- confidential information.
[154] While Mr Beverley might well add value to the document analysis process, I see his solicitors and counsel as being appropriately experienced and well-placed to give sufficient instructions to their experts during trial preparation.
[155] The defendants have accepted that there may be documents which the Beverleys’ legal team may not have sufficient expertise to read. In those cases, they say, first, that counsel for the plaintiffs have not identified which particular documents they have in mind and, secondly, and in any event, the material will in due course be the subject of expert evidence. I accept the points that, more commonly, experts will assist counsel in understanding the content of documents that are technical or data- heavy. I do not see this as placing undue costs pressure on the plaintiffs’ legal team. The nature of the expert instruction exercise should be much the same either way.
Conclusions
[156] All in all, the plaintiffs’ approach is, in my view, inappropriately broad. They say that there are grounds to suggest that material over which confidentiality is claimed will contain further material central to the plaintiffs’ pleaded case, and that they need
13 Todd Pohokura Ltd v Shell Exploration NZ Ltd HC Wellington CIV-2006-45-1600, 12 August 2009 at [20] and Payment Express, above n 11, at [22], [25(a)] and [27] to [28].
Mr Beverley to help them to identify it. They seek broadly framed orders, which would set aside the existing claims to confidentiality and which would require the defendants to justify on a document-by-document basis the confidentiality they wish to maintain. That is, in my view, the wrong way round. I see the defendants as having established an appropriate basis for the confidentiality claims they have made. And, at the broad level on which this application has proceeded, I see the defendants as having established prejudice that outweighs the prejudice to the plaintiffs. It remains open to the plaintiffs to challenge claims to confidentiality over particular documents with an appropriate basis for doing so. But it is not enough to harbour suspicions, borne from mistrust, and to seek a blanket de-designation over entire sets of confidential documents as a result.
Outcome
[157]For these reasons, the application is declined.
C. Defendants’ application for further and better discovery by plaintiff
[158]The defendants applied for orders for further and better discovery:
(a)by the Beverleys of certain valuation material; and
(b)by the plaintiff companies of documents on Mr Beverley’s Drylandcarbon cell phone.
[159] By the time of the hearing, the matters raised in the application were no longer in contention.
Costs
[160] The plaintiffs and the defendants have both had a measure of success. For both sides, the nature and length of the evidence and submissions filed on the applications is not entirely proportionate to the issues in question and is not well-aligned to the High Court Rules’ objective of securing the just, speedy and inexpensive determination of any proceeding or interlocutory application. There is a case to say that costs should lie where they fall. However, if the parties cannot agree on an
appropriate approach to costs, then the plaintiff is to file a memorandum within 15 working days of the date of this decision and the defendant is to file a memorandum within a further 10 working day period. Memoranda are to be limited to five pages in length (including schedules). Counsel for the plaintiffs has sought to be heard on costs. That would not seem to be necessary to me but in the event that a hearing is still sought, a request should be made in the memorandum filed.
Radich J
Solicitors:
Bell Gully, Wellington
Mallett Partners, Wellington
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