Beverley v DC One H1 Limited - [2024] NZHC 3363

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
Plaintiffs

AND

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 the
possession 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 been
discovered  [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…

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 3363
Decision Date: 12 November 2024

CaseChat Overview and Summary

This case concerns a complex dispute involving multiple parties and inter-related proceedings. The plaintiffs, Mr. and Mrs. Beverley and others, bring claims against Mr. Leckie, Mr. Morrison, and entities associated with them for the alleged diversion of corporate opportunities from the Drylandcarbon fund to the Forest Partners fund. The defendants have been engaged in a lengthy and complex discovery process, which has resulted in over 35,000 documents being discovered from a total of 400,000 searched documents. The plaintiffs sought further and better discovery from the defendants, including documents from specific repositories and certain categories of documents. The Court methodically addressed each aspect of the plaintiffs' application, making orders for particular discovery where appropriate. The Court also considered the plaintiffs' application to set aside the defendants' claims to confidentiality over certain documents, declining the application and finding that the defendants had established a sufficient basis for their confidentiality claims. The defendants also sought further and better discovery from the plaintiffs, but these matters were resolved before the hearing. The Court noted that the length and complexity of the evidence and submissions did not align with the objective of the High Court Rules to secure a just, speedy, and inexpensive determination of proceedings. If the parties could not agree on costs, they were directed to file memoranda within specified timeframes.

The Court's decision provides a detailed and methodical approach to addressing the discovery issues, balancing the interests of the parties and the principles of confidentiality with the need for transparency and fairness in the litigation process. The decision also highlights the importance of proportionality and the just, speedy, and inexpensive determination of proceedings.

Orders