BIL NZ Treasury Limited v PriceWaterhouseCoopers New Zealand

[2021] NZHC 1556

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE WHANGANUI-A-TARA ROHE

CIV-2019-485-668

[2021] NZHC 1556

BETWEEN

BIL NZ TREASURY LIMITED

First Plaintiff

GL MANAGEMENT PTE LIMITED
Second Plaintiff

GL LIMITED
Third Plaintiff

BRIERLEY HOLDINGS LIMITED
Fourth Plaintiff

AND

PRICEWATERHOUSECOOPERS NEW ZEALAND

Defendant

Hearing:	24 May 2021
Appearances:	R J Hollyman QC and E J Watt for plaintiffs D J Friar and N F D Moffatt for defendant
Judgment:	29 June 2021
Reissued:	3 September 2021

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

Introduction

[1]                The  plaintiffs  are  all  members  of  the  Brierley  group of companies.    The defendant is a New Zealand firm of chartered accountants with international links.

[2]                In mid-1998 the plaintiffs engaged PricewaterhouseCoopers (then Coopers & Lybrand)   to   provide  accounting  services.  Unsurprisingly, given that these

BIL NZ TREASURY LIMITED v PRICEWATERHOUSECOOPERS NEW ZEALAND [2021] NZHC 1556 [29 June 2021]

arrangements were made when they were, there is no evidence of a formal contract for services between the parties. There is a letter written to the plaintiffs by PwC in relation to the original engagement dated 28 May 1998, to which it will be necessary to return.

[3]                The plaintiffs say that between 1998 and 2018, they acted on advice received from PwC as to how they could use substantial historical losses. The plaintiffs had accumulated losses in the order of $1,582,000,000. These would of course only be of any value to them if and when they generated income against which they could be offset. At the time that the plaintiffs engaged PwC, there appears to have been no obvious prospect of that. What the plaintiffs needed to do was to find a way of generating income, internally or by the acquisition of a new, income-generating business. In the meantime, they needed to ensure that the losses could be carried forward year on year until they could be utilised.

[4]                It was in relation to this issue —how these losses could be carried forward — that the plaintiffs say they sought advice from PwC.

[5]                They say that PwC provided both initial advice and ongoing advice in relation to this over the years already referred to.

[6]                Finally, they say that, during the financial year ending 30 June 2019, in circumstances which need not be described here, it became apparent that the advice that PwC had provided was wrong, and that as a result the opportunity to utilise the tax losses was lost.

[7]                The plaintiffs sue PwC claiming unspecified damages alleged to follow from the loss of the chance to take advantage of those losses.

[8]                PwC denies liability. It says that the arrangements that were put in place were developed by the plaintiffs’ internal advisers; that to the extent that it provided any advice this was sound; and that, even if its advice had not been correct, the plaintiffs’ claim is for the loss of a chance and they will not be able to prove that at any point they were able to generate income which would have enabled them to avail themselves of the chance.

[9]                Obviously, that is a skeletal description of the parties’ cases, but it is adequate to set the scene.

[10]Before the Court for determination are two opposed interlocutory applications:

(a)The plaintiff’s application dated 5 March 2021 for orders requiring PwC further to particularise its defence, and provide additional discovery;

(b)PwC’s application, originally dated 19 March 2021, but amended on  8 April 2021, for orders requiring the plaintiffs further to particularise their claim and provide additional discovery.1

[11]            There is thus a delightful symmetry between the parties’ applications and oppositions.

[12]            The principles involved are well settled, and counsel were largely in agreement as to these.

Pleadings and particularisation

[13]The High Court Rules 2016 deal with pleadings in pt 5.

[14]            The essential requirement of any pleading, be it on behalf of a plaintiff, defendant or other party, is that it provide sufficient information clearly to inform the other party or parties of the pleader’s case.2 It is as simple as that. The Courts no longer tolerate trial by ambush or any form of evasiveness in pleadings. A party must nail his, her or its colours to the mast.

Discovery

[15]Discovery is dealt with in pt 8 of the Rules.

1      Originally, PwC was also applying for an order for security for costs, but that application has been resolved by the parties.

2      See Price Waterhouse v Fortex Group Ltd CA179/98, 30 November 1998 at 17–19; and Platt v Porirua City Council [2012] NZHC 2445 at [19].

[16]            For present purposes, it is only necessary to record that on the application of any party the Court is entitled to order any other party to disclose (“discover”) any document, documents or category or categories of documents.3

[17]Generally, such applications call for an analysis of three key factors:

(a)The first question is whether it appears that the document, documents category or categories are relevant to one or more issue in the case (determined of course by reference to the pleadings);

(b)If so then the second question is whether there are grounds for believing that the document, documents, category or categories exist;

(c)If so then the third question is whether an order compelling the party in question to discover the document, documents, category or categories is proportionate having regard to all the circumstances of the case.

[18]            If those questions are all answered in the affirmative, then the Court will order discovery subject to any claims to privilege or confidentiality.

Plaintiffs’ application for an order requiring PwC further to particularise its defence

[19]            Mr Hollyman and Mr Friar helpfully produced a spreadsheet of the pleadings in respect of which the plaintiffs seek particulars, the exchanges to date between the parties as to this request and the residual issues for determination. For ease of reference this is attached.

[20]            This will avoid the need for a tedious narrative description of the background to each issue.

Amended statement of claim dated 21 August 2020, paragraph 35

[21]            The issue is whether PwC is required to admit or deny the assertion that the correspondence in question was the first time that it raised any concern about the

3      High Court Rules 2016, r 8.19.

GAAR. There are only three possibilities. Either PwC admits that the correspondence in question was the first time that it raised any concern. Or it denies that because it says it raised any such concern on an earlier occasion or occasions, in which case I would expect it to identify when it says it first raised any concern and in what terms. Or it does not know, in which case I would expect it to deny the allegation on that basis. In my view, the plaintiffs are entitled to know this.

[22]I order that PwC provide the further particulars sought.

Paragraph 58

[23]            The issue is whether the plaintiffs are entitled to require PwC to admit or deny that it failed to advise the plaintiffs that the refresh mechanism may contravene the GAAR on each occasion that the conduct particularised in paragraph 58(b)(i)–(vii) of the amended statement of claim occurred, and that it did not advise the plaintiffs that the capital distribution and the share acquisition would result in continuity breaches. Again, in relation to each occasion, there are only three options. Either PwC admits the failure to provide the advice in question. Or it denies the failure and says it can establish that it did provide such advice, in which case the details should be particularised. Or it does not know, in which case I would expect it to deny the allegation on that basis. In my view, the plaintiffs are entitled to know.

[24]I order that PwC provide the further particulars sought.

Paragraph 59

[25]            The issue is whether the plaintiffs are entitled to require PwC to go further than its denial of the plaintiff’s claims. As Mr Friar submits, having denied that their actions constituted a breach of the Fair Trading Act 1986 as alleged, that necessarily means that PwC is saying their conduct was not misleading or deceptive or likely to be misleading or deceptive in any of the respects or on any of the occasions pleaded. It seems to me that that is a clear statement of PwC’s position, effectively putting the plaintiffs to proof. I do not see that PwC should be expected to go further.

[26]I decline to order PwC to provide the further particulars sought.

Paragraph 61

[27]            In the end, it appears to me that what the plaintiffs are asking here is a question of law — whether the relationship between the parties was of a fiduciary nature. The plaintiffs allege that it is, and have particularised why they say that. PwC has denied this, and responded to the particulars by reference to other aspects of the pleadings. Its response could scarcely be clearer. It denies the existence of any such relationship. That puts the character of the relationship in issue. The parties can call evidence in relation to that, possibly including expert evidence. Counsel can argue the point.

[28]I decline to order PwC to provide the further particulars sought.

Paragraph 63

[29]            The plaintiffs assert that PwC breached fiduciary duties owed to them. PwC denies this. The plaintiffs’ pleading is of course predicated on the assumption that they were owed fiduciary duties by PwC, a legal issue already addressed under paragraph 61 above. To that extent, this too is a legal issue. My analysis in relation  to paragraphs 61 applies equally to paragraph 63.

[30]I decline to order PwC to provide the further particulars sought.

Paragraph 68

[31]            The analysis relating to paragraphs 61 and 63 applies equally to paragraph 68 where the plaintiffs allege that PwC breached a tortious duty of care in exactly the same circumstances.

[32]I decline to order PwC to provide the further particulars sought.

Paragraph 74

[33]            The analysis relating to paragraphs 61, 63 and 68 applies equally to paragraph 74.

[34]I decline to order PwC to provide the further particulars sought.

Defence to amended statement of claim dated 25 September 2020, paragraph 76

[35]            The remaining particulars sought by the plaintiffs arise from PwC’s three affirmative defences, articulated in the defence to amended statement of claim (dated 25 September 2020). In paragraph 76 PwC pleads that the plaintiffs’ claims are all time-barred. I agree that PwC’s pleading is insufficiently particular. During the course of argument Mr Friar accepted that PwC should address each cause of action separately, identifying when the limitation period is said to have begun to run, in each case providing sufficient detail to allow the plaintiffs to understand the factual circumstances on which PwC relies.

[36]I order that PwC replead its time-bar affirmative defences accordingly.

Paragraph 77

[37]            In paragraph 77 PwC pleads that there is a contractual time-bar in its favour. During the course of argument Mr Friar said that, if it was not clear that PwC’s defence was that the alleged contractual time-bar was said to apply for the entire period of the contract and across all causes of action, PwC would be happy to say just that. A party relying on a contractual limitation of liability is obliged to identify with as much precision as possible the original contract, the dates of any subsequent variations, the terms of the same and the scope of the alleged limitation.

[38]            I order that PwC replead this affirmative defence with those considerations in mind.

Paragraph 78

[39]            In paragraph 78 PwC pleads reliance on the Contributary Negligence Act 1947. As far as I can see PwC has responded to the request for particulars (albeit that it has responded to the questions asked in (b) and (c) together in its (b). A defendant pleading contributory negligence must particularise the allegation or allegations of negligence, just as a plaintiff must do in a statement of claim. If PwC is content to rely on the particulars set out in (b) in its response — that is to say the allegation that the refresh mechanism was instigated by the plaintiffs based on advice from their own in-house

tax team as earlier pleaded — then that will limit the evidence PwC can call in support of this affirmative defence.

[40]On that basis, I decline to order PwC to provide the further particulars sought.

Plaintiff’s application for further discovery

Issues

[41]            Discovery by PwC has been an iterative process. That is not a criticism. This is common in commercial litigation.

[42]            By the time of the hearing, the issues been pursued by the plaintiff had reduced themselves to the following:

3.8Accordingly, the plaintiffs now pursue their application in relation to:

(a)The Lotus Notes email mailboxes of the PwC staff members listed in paragraph 1 of schedule 2 of the application in the period pre-2011 (which PwC says have not been searched);

(b)The documents held at PwC offices overseas (listed in paragraph 3 of schedule 2 of the application) which PwC ought to request from those officers.

[Footnotes omitted.]

The Lotus Notes

[43]            My understanding is that the number of PwC personnel in respect of whom the plaintiff pursues the Lotus Notes email mailboxes has reduced from 24, as set out in the plaintiff’s original application, to six.

[44]This is because:

(a)in respect of five of the individuals concerned there are no Lotus Notes email mailboxes;

(b)in respect of 13 of the individuals, they have never been PwC staff members but were staff members of related entities abroad. In relation to these individuals, I accept Mr Friar’s submission that as PwC (the

New Zealand entity) is independent of any other PwC entity abroad, PwC does not have possession or control of their Lotus Notes email mailboxes. I would have thought, though, that, having regard to the obligation to cooperate in relation to discovery, PwC’s advisers might at least make inquiries as to what documentation may or may not exist, so as to avoid the plaintiffs incurring unnecessary costs.

[45]            As already said, this leaves six individuals in respect of whom PwC has Lotus Notes email records.

[46]            The essential contest between the parties insofar as these individuals are concerned is one of proportionality. The plaintiffs say there is a realistic prospect that their email boxes may contain relevant material. PwC does not necessarily deny that, but it says in relation to these individuals that they were comparatively junior at the time, and that anything of relevance in their email in-boxes is likely to be included in the email in-boxes of more senior folk in respect of whom it has already provided discovery, and therefore that carrying out a search of these email boxes is not justified.

[47]            In my judgment, the plaintiffs are entitled to discovery of these email in-boxes. On any view this is a significant claim concerning tax losses of over $1.5 billion. Furthermore, with the benefit of modern search techniques, it does not strike me that it will be unduly burdensome for PwC and its solicitors to carry out a targeted electronic search of these email boxes and discover any genuinely relevant material that that throws up, if indeed it throws up any such material.

[48]I order PwC to provide the further discovery sought.

Defendant’s application for an order requiring the plaintiffs further to particularise their claim

[49]            Following a notice requiring further particulars, an initial response, a request for additional responses and a response to that, there are eight paragraphs (or sub-paragraphs) of the plaintiff’s amended statement of claim dated 21 September 2020 in respect of which PwC seeks further particularisation.

[50]            These are helpfully set out in a schedule to Mr Friar’s written synopsis of argument, and I quote from that below in order to identify the particulars sought.

Amended statement of claim dated 21 September 2020, paragraph 7

1.Paragraph 7 of the Amended Claim pleads that GL retained PwC in “or around July 1998”  to  provide  tax  services  to  GL  and  its New Zealand subsidiaries.

2.PwC requires the following further particulars of that engagement:

(a)if the terms of engagement were provided in a written agreement:

(i)what was that document and what was its date?

(ii)when was it provided to PwC?

(iii)who for the plaintiffs provided it to PwC and who from PwC was it given to?

(b)if the terms of engagement were in an oral agreement:

(i)when was that oral agreement made?

(ii)who for the plaintiffs and who from PwC made the agreement?

(iii)what were the full terms of that agreement?

(c)which terms of the agreement did the Proposal Document (as that term is defined in paragraph 12 of the Amended Claim) clarify or amend and how did they clarify or amend those terms?

[51]            This is a relatively standard request for particulars seeking to clarify the nature and terms of the contractual arrangement between the parties. In my view, it is incumbent on the plaintiffs to provide PwC with as much information as they have as to the contractual arrangements. The current pleading is somewhat anodyne. And of course, the plaintiffs have discovered the letter to Brierley Investments Ltd from Coopers and Lybrand dated 28 May 1998 referred to earlier.

[52]I order that the plaintiffs provide the further particulars sought.

Paragraph 15

3.Paragraph 15 of the Amended Claim states that it was an implied term of any contract, relating to the retention of PwC to provide its tax

services to the NZ Group, that PwC would exercise reasonable care and skill in carrying out its obligations.

1. PwC requires the following further particulars of that contract:

   (a)if the contract was contained in a written document:

1. what was that document and what was its date?

1. when was it provided to PwC?

   (iii)who for the plaintiffs provided it to PwC and who from PwC was it given to?

(b)if the contract was an oral agreement:

(i)when was that oral agreement made?

(ii)who for the plaintiffs and who from PwC made the agreement?

(iii)what were the full terms of that agreement?

(c)which terms of the contract did the Proposal Document clarify or amend and how did they clarify or amend those terms?

[53]            It appears to me to be unnecessary to make any order in relation to paragraph 15, as the particulars as are sought in relation to paragraph 7 should also cover this request.

[54]I decline to order the plaintiffs to provide the further particulars sought.

Paragraph 54

5.Paragraph 54(b) of the Amended Claim alleges that, if the plaintiffs had been “correctly” advised, the plaintiffs would have utilised the tax losses before they were forfeited as a result of the Continuity Breaches by offsetting the losses against taxable income.

6.In the Response, the plaintiffs further stated that they would have taken advice and acted in accordance with that advice, “which steps could have included, inter alia”:

(a)acquiring a profitable New Zealand Business or businesses, the taxable income of which could be offset against the tax losses;

(b)utilising the NZ Group as a global financing hub for the activities of the wider group of companies.

7.PwC requires the following particulars:

(a)who would the plaintiffs have obtained advice from?

(b)what would have been the content of that advice?

(c)when would the advice have been obtained?

(d)what would have been the New Zealand business or businesses that the plaintiffs would have acquired?

(e)what would the terms of the acquisition have been?

(f)why would the plaintiffs have been able to acquire them if they had been “correctly” advised, when they had been unable to acquire such businesses when the Refresh Mechanism was in place?

(g)what would the taxable income derived from those businesses and used for the purpose of utilising the tax losses?

(h)how would the NZ Group have been utilised as a global financial hub for the NZ Group?

(i)why would  the  plaintiffs  have  been  able  to  utilise  the NZ Group as a global financial hub if they had been “correctly” advised, when they did not do this when the Refresh Mechanism was in place?

(j)what would have been the taxable income derived from utilising the NZ Group as a global financial hub and used for the purpose of utilising the tax losses?

(k)what other steps (if any) would the plaintiffs would [sic] have taken to utilise the tax losses?

[55]            This request for particulars appears to me to be objectionable. Rather than asking the plaintiffs to provide factual information, it invites the plaintiffs to say what they might or might not have done. To that extent, I do not regard it as a proper request for particularisation.

[56]I decline to order the plaintiffs to provide the further particulars sought.

Paragraph 58

8.Paragraph 58 of the Amended Claim alleges that PwC engaged in misleading and deceptive conduct on a number of occasions, including those identified at paragraph 58(b)(v) to (vii) of the Amended Claim.

9.PwC requires for each of the occasions set out in paragraph 58(b)(v) to (vii) of the Amended Claim of:

(a)the date of such occasion;

(b)the parties to that occasion, and

(c)any document recording that occasion.

[57]            This appears to me to be a perfectly orthodox request for as much factual detail as possible relating to allegations of breach.

[58]I order the plaintiffs to provide the particulars sought.

Paragraph 60(b)(ii)

10.Paragraph 60(b)(ii) of the Amended Claim alleges that the plaintiffs have suffered the loss of a chance to utilise the tax losses by offsetting them against taxable income prior to the Continuity Breaches.

11.In the Response, the plaintiffs further stated, in terms of how they would have utilised the tax losses, that they would have taken advice and acted in accordance with that advice, “which steps could have included, inter alia”:

(a)acquiring a profitable New Zealand business or businesses, the taxable income of which could be offset against the tax losses;

(b)utilising the NZ Group as a global financing hub for the activities of the wider group of companies.

12.PwC requires the following particulars:

(a)who would the plaintiffs have obtained advice from?

(b)what would have been the content of that advice?

(c)when would the advice have been obtained?

(d)what would have been the New Zealand business or businesses that the plaintiffs would have acquired?

(e)what would the terms of the acquisition have been?

(f)why would the plaintiffs have been able to acquire them if they had been “correctly” advised, when they had been unable to acquire such businesses when the Refresh Mechanism was in place?

(g)what would have been the taxable income derived from those businesses and used for the purpose of utilising the tax losses?

(h)why would  the  plaintiffs  have  been  able  to  utilise  the NZ Group as a global financial hub if they had been “correctly” advised, when they did not do this when the Refresh Mechanism was in place?

(i)why would have been the taxable income derived from utilising the NZ Group as a global financial hub and used for the purpose of utilising the tax losses?

(k)what other steps (if any) would the plaintiffs would [sic] have taken to utilise the tax losses?

[59]            My analysis of the particulars sought at paragraph 54 applies equally to this request for particulars.

[60]I decline to order the plaintiffs to provide the particulars sought.

Paragraph 60(b)(iii)

13.Paragraph 60(b)(iii) of the Amended Claim alleges that the plaintiffs have suffered the loss of a chance to commence proceedings at an earlier time for loss suffered.

14.In the Response, the plaintiffs have said that they would have commenced proceedings once they were aware of the relevant facts giving rise to a cause of action against PwC.

15.PwC requires particulars as to:

(a)what facts BIL would have to be aware of before it could have issued proceedings; and

(b)the time period in which, after having become aware of these facts, the plaintiffs would have issued proceedings.

[61]            My analysis of the particulars sought at paragraphs 54 and 60(b)(ii) applies equally to this request for particulars.

[62]I decline to order the plaintiffs to respond to this request.

Paragraph 70(b)

16.Paragraph 70(b) of the Amended Claim alleges that the plaintiffs would have utilised the tax losses by offsetting them against taxable income prior to the Continuity Breaches.

17.In the Response, the plaintiffs have further stated that the steps to utilise the tax losses “could have included, inter alia”:

(a)acquiring a profitable New Zealand business or businesses, the taxable income of which could be offset against the tax losses;

(b)utilising the NZ Group as a global financing hub for the activities of the wider group of companies.

18.PwC requires the following particulars:

(a)what would have been the New Zealand business or businesses that the plaintiffs would have acquired?

(b)what would the terms of the acquisition have been?

(c)why would the plaintiffs have been able to acquire them if they had been “correctly” advised, when they had been unable to acquire such businesses when the Refresh Mechanism was in place?

(d)what would have been the taxable income derived from those businesses and used for the purpose of utilising the tax losses?

(e)how would the NZ Group have been utilised as a global financial hub for the NZ Group?

(f)why would  the  plaintiffs  have  been  able  to  utilise  the NZ Group as a global financial hub if they had been “correctly” advised, when they did not do this when the Refresh Mechanism was in place?

(g)what would have been the taxable income derived from utilising the NZ Group as a global financial hub and used for the purpose of utilising the tax losses?

(h)what other steps (if any) would the plaintiffs would [sic] have taken to utilise the tax losses?

[63]            My analysis of the requests for particulars at paragraphs 54, 60(b)(ii) and 60(b)(iii) applies equally to this request for particulars.

[64]I decline to order the plaintiffs to provide the particulars sought.

Paragraph 70(c)

19.Paragraph 70(c) of the Amended Claim alleges that the plaintiffs would have commenced proceedings at an earlier time for loss suffered.

20.In the Response, the plaintiffs have said that they would have commenced proceedings once they were aware of the relevant facts giving rise to a cause of action against PwC.

21.PwC requires particulars as to:

(a)what facts BIL would have to be aware of before it could have issued proceedings; and

(b)the time period in which, after having become aware of these facts, the plaintiffs would have issued proceedings.

[65]            My analysis of the requests for particulars at paragraphs 54, 60(b)(ii), 60(b)(iii) and 70(b) above applies equally to this request.

[66]I decline to order the plaintiffs to provide the particulars sought.

PwC’s application for further and better discovery

[67]            In an amended interlocutory application dated 8 April 2021 PwC identified the further discovery it was seeking from the plaintiffs as at that date:

Particular discovery sought

1.     All hard copy, electronic documents and email mailboxes of:

(a)John Payne;

(b)Andrew Shepherd;

(c)Dominic Siu; and

(d)Philip Gunn.

2.     All hard copy and electronic documents showing the sophistication and expertise of that In-House Tax Team (as defined in paragraph 8 of the Amended Claim), and its ability to advise on matters such as the implementation of the Refresh Mechanism and the risks associated with the Refresh Mechanism.

3.     All hard copy and electronic documents relating to the plaintiffs’ attempts to utilise the tax losses, as set out in paragraph 19 of the Amended Claim, from 1998 onwards.

4.     All documents relating to the Capital Distribution and the Share Acquisition (as defined in paragraph 29 of the Amended Statement of Claim) and any other transactions affecting compliance with the Shareholder Continuity Test in respect of the BILNZT Losses, the BILNZH Losses, and Other Subsidiaries’ Losses (as defined in paragraph 19 of the Amended Statement of Claim) including documents showing:

(a)the reasons why those transactions were undertaken; and

(b)whether they would have been undertaken if the plaintiffs had been “correctly advised” by PwC.

5.     All documents relating to any other refresh mechanism that was used by the plaintiffs or any related party to refresh the BILNZT Losses, the BILNZH Losses, and Other Subsidiaries’ Losses.

6.     All documents relating to the use of the BILNZT Losses, the BILNZH Losses, or Other Subsidiaries’ Losses following the acquisition of the Manuka Health group of companies in 2018 and any documents relating

to the choice of the acquiring entity within the plaintiff group of companies.

7.     All documents, including file notes, relating to any discussions between Ernst & Young and the IRD,  including  the  no-names  discussion  on 31 October 2019.

8.     All documents relating to the ‘in principle’ agreement between Ernst & Young, on behalf of the plaintiffs, and the IRD.

[68]            Prior to the hearing the plaintiffs filed and served an unsworn supplementary affidavit of documents. For PwC Mr Friar levelled some justified criticism at the plaintiffs for leaving this until the last moment, but realistically accepted that this further material might ultimately reduce the scope of the dispute regarding the adequacy of discovery by the plaintiffs.

The third category of documentation

[69]            This is a particularly important area. The plaintiffs’ claim is based on the contention that they have lost the opportunity to utilise their tax losses as a result of the actions of PwC, and PwC expressly challenges whether the plaintiffs ever had such a chance. The plaintiffs have discovered some documentation in this category. However, Mr Friar submits that as all of this documentation constitutes board reports and the like, these are almost certainly likely to be the end product of work carried out by management, and it is surprising that no documentation generated at that level has been discovered. I agree.

[70]            I order that the plaintiffs provide further discovery by carrying out an appropriate search in relation to this category of documentation and provide any further discovery that that throws up. Their affidavit of documents should record the scope of the search — electronic or otherwise — carried out.

The sixth category of documentation

[71]            This category covers documentation relating to attempts to utilise the tax losses during 2018. On PwC’s behalf Mr Friar submits that the documentation thus far supplied includes no documentation in relation to the use of tax losses in the 2018 acquisition. He submits that it is “inconceivable” that no such documentation should exist. Again, I agree.

[72]            I direct the plaintiffs to provide further and better discovery in relation to this category of documentation, providing full details of the searches — manual or electronic — carried out.

The fourth, fifth, seventh and eighth categories of documentation

[73]            In my original judgment issued on 29 June 2021, I recorded my understanding that the defendant was no longer pursuing orders for further discovery in relation to the documentation identified in paragraphs 4, 5, 7 and 8 of its application. Subsequently Mr Friar for the defendant has informed me that that understanding on my part was wrong and  sought a recall of my  judgment.   This was opposed by    Mr Hollyman for the plaintiffs. I recalled my judgment with a view to addressing those aspects of the defendant’s application that were not determined (and dealing too with some minor slips).

[74]            Counsel have since exchanged further submissions on the outstanding discovery issues. Mr Hollyman has filed and served a memorandum in which he indicates that in order to avoid the Court having to deal with the outstanding discovery issue, the plaintiffs will file a further affidavit of documents addressing the categories of documents identified in the last paragraph. Following a further exchange of memoranda in relation to this, I arranged a teleconference with counsel, in the course of which I indicated that I was proposing to order the plaintiffs to file a further affidavit of documents in respect of the four outstanding categories of documents. The affidavit is to provide as much detail as necessary so as to ensure that the defendant is fully and fairly informed of the scope and nature of enquiries made of the documentation, any information that the plaintiffs have as to the existence and whereabouts of any relevant documentation, whether it is within the plaintiffs’ possession or power, if not who has possession of or power over the same and any other relevant information.

Costs

[75]            Both parties have enjoyed a measure of success. In those circumstances, my preliminary view is that costs should be left to lie where they have fallen. But as I have not heard from counsel I reserve costs. If counsel are unable to sort these out, as

I would expect them to do, they may file and serve memoranda in the usual way.

Associate Judge Johnston

Solicitors:

Wynn Williams, Auckland for plaintiffs Bell Gully, Wellington for defendant

Schedule – Further Particulars

Paragraph of Amended Claim	Amended Statement of Claim (dated 21 August 2020)	Defence to Amended Statement of Claim (dated 25 September 2020)	Notice requiring defendant to give further and better particulars of defence to amended statement of claim (dated 23 October 2020)	Response to Notice Requiring Further Particulars of Statement of Defence (dated 29 January 2021)	Further Particulars Sought	Response of PwC
35	The correspondence detailed at paragraphs 32 to 34 above was the first time that PwC had raised any concern that the Refresh Mechanism contravened the GAAR	It denies paragraph 35.	The plaintiffs require further particulars of whether the defendant denies one or more of the following: (a)    that the Refresh Mechanism contravened the GAAR; (b)    that PwC raised a concern that the Refresh Mechanism contravened the GAAR; and (c)    that the first time PwC raised a concern that the Refresh Mechanism contravened the GAAR was the correspondence detailed at paragraphs 32 to 34 of the statement of claim.	(a)       The sole allegation in paragraph 35 of the Amended Statement of Claim is that the correspondence in paragraphs 32 to 34 was the first time that PwC had raised any concern that the Refresh Mechanism contravened the GAAR. (b)       Paragraph 35 of the Defence already clearly denies this allegation. (c)       For the avoidance of doubt, however, PwC: i.   denies that the Refresh Mechanism contravened the GAAR; and ii.     admits that the correspondence referred to in paragraphs 33 and 34 of the Amended Statement of Claim raised a concern that Inland Revenue might challenge the offset of tax losses under the GAAR.	PwC has failed to respond to request (c). This is evasive. PwC should clarify whether it denies that the first time PwC raised a concern that the Refresh Mechanism contravened the GAAR was the correspondence detailed at paragraphs 32 to 34 of the statement of claim. If it does so deny, PwC should respond in substance and provide particulars of what it says is the true position.	The assumption in the plaintiffs’ Amended Statement of Claim and the particulars it seeks is that PwC advised in the relevant correspondence that the Refresh Mechanism contravened the GAAR. However, that correspondence does not say this, but says that Inland Revenue might challenge the offset of tax losses that the plaintiffs were proposing. PwC stated this clearly in (c) in response and also made clear that it denies that the that the Refresh Mechanism contravened the GAAR at all. There are no further particulars it could give in light of this position.

Paragraph of Amended Claim	Amended Statement of Claim (dated 21 August 2020)	Defence to Amended Statement of Claim (dated 25 September 2020)	Notice requiring defendant to give further and better particulars of defence to amended statement of claim (dated 23 October 2020)	Response to Notice Requiring Further Particulars of Statement of Defence (dated 29 January 2021)	Further Particulars Sought	Response of PwC
58	In breach of section 9 of the FTA, PwC engaged in conduct that was misleading or deceptive, or likely to mislead or deceive: (a)    On each occasion that it advised the plaintiffs to implement and perpetuate the Refresh Mechanism. (b)    By failing to advise the plaintiffs that the Refresh Mechanism may contravene the GAAR on each occasion that it: i.   Advised the NZ Group in respect of the Group Restructure. ii.   Advised the NZ Group on perpetuating the Refresh Mechanism from 1998 to 2018. iii.   Advised the NZ Group on the Capital Distribution and the Share Acquisition. iv.   Provided tax advice to the NZ Group, as particularised at paragraph 18(d) above. v.   Acted as the NZ	It denies paragraph 58	The plaintiffs require further particulars of whether the defendant denies one or more of the following: (a)    that it advised the plaintiffs to implement and perpetuate the Refresh Mechanism; (b)    that the conduct particularised in paragraph 58(b)(i)– (vii)  of the amended statement of claim occurred; (c)    that it failed to advise the plaintiffs that the refresh mechanism may contravene the GAAR on each occasion that the conduct particularised in paragraph 58(b)(i)– (vii)  of the amended statement of claim occurred; (d)    that it did not advise the plaintiffs that the Capital Distribution and the Share Acquisition would result in the Continuity Breaches; and (e)    that any or all of the above conduct was misleading or deceptive, or likely to mislead or deceive.	(a)       The allegation in paragraph 58 is that PwC engaged in conduct that was misleading or deceptive, or likely to mislead or deceive on any of the occasions alleged in that paragraph. (b)       Paragraph 58 of the Defence already clearly denies that PwC engaged in such conduct on any of the occasions alleged in that paragraph. (c)       For the avoidance of doubt, however, PwC says the following: i.      it denies that it advised the plaintiffs to implement and perpetuate the Refresh Mechanism; ii.      in terms of whether the alleged conduct set out at paragraph 58(b)(i)-(vii) of the Amended Statement of Claim occurred, it admits that it performed the services set out	PwC has failed to respond to requests (c) and (d) or has given an evasive response. PwC should clarify whether it denies (and provide particulars of what it says is the true position): ‒     that it failed to advise the plaintiffs that the refresh mechanism may contravene the GAAR on each occasion that the conduct particularised in paragraph 58(b)(i)– (vii) of the amended statement of claim occurred; ‒     that it did not advise the plaintiffs that the Capital Distribution and the Share Acquisition would result in the Continuity Breaches.	The particulars sought ignore what the plaintiffs have, in fact, pleaded at paragraph 58 of the Amended Statement of Claim. The entire predicate of paragraph 58 is that PwC engaged in misleading and deceptive conduct in breach of section 9 of the FTA. In the statement of defence and the response PwC makes clear that it denies that it engaged in misleading and deceptive conduct on any of the occasions identified by the plaintiffs. That is all that PwC is required to say in response to paragraph 58 given the terms in which the plaintiffs have chosen to frame paragraph 58.

Paragraph of Amended Claim	Amended Statement of Claim (dated 21 August 2020)	Defence to Amended Statement of Claim (dated 25 September 2020)	Notice requiring defendant to give further and better particulars of defence to amended statement of claim (dated 23 October 2020)	Response to Notice Requiring Further Particulars of Statement of Defence (dated 29 January 2021)		Further Particulars Sought	Response of PwC
Group’s corporate tax compliance agent.	(d)	in paragraph 18 of the Defence; and iii. it otherwise says that paragraph 58(b)(i)-(vii) remains inadequately particularised as to the date of the alleged conduct, the parties to it, and the documents recording that conduct and it, therefore, denies that conduct; it denies each of paragraph 14(c), (d), and (e) above (as already pleaded in paragraph 58 of the Defence).
vi.   Prepared and filed the NZ Group’s annual returns with Inland Revenue for the financial years ended 30 June 2001 to 30 June 2018.
vii.   Provided yearly confirmation to GL and BILNZT’s auditors, regarding the tax losses reported in the annual reports of BILNZT and GL.
By failing to advise the plaintiffs that the Capital Distribution and the Share Acquisition would result in the Continuity Breaches
59	The above conduct was misleading or deceptive, or likely to mislead or deceive, becauseon each occasion: (a)       the advice was incorrect and / or incomplete; and / or (b)       correct and complete advice should have been given but was not; and /or (c)       the conduct implied that there was a reasonable basis for	It denies paragraph 59	The plaintiffs require further particulars of whether the defendant denies one or more of the following: (a)    that the conduct particularised in paragraph 58(b)(i)–(vii) of the amended statement of claim occurred; (b)    that on each occasion: (i)     the advice was incorrect and/or	(a)	The allegation in paragraph 59 of the Amended Statement of Claim is predicated on PwC having engaged in conduct that was misleading or deceptive or likely to misleading or deceptive. As PwC denies that it engaged in conduct in conduct that was misleading or deceptive or likely to misleading or deceptive, it has	PwC has failed to respond to requests (a) and (b) or has given an evasive response. PwC should clarify whether it denies (and provide particulars of what it says is the true position): ‒ that the conduct particularised in paragraph 58(b)(i)– (vii) of the amended statement of claim occurred;	Again, the particulars sought ignore what the plaintiffs have, in fact, pleaded at paragraph 59 of the Amended Statement of Claim.  The entire predicate of paragraph 59 is that PwC engaged in misleading and deceptive conduct in breach of section 9 of the FTA.  In the statement of defence and the response PwC makes clear that it denies that it engaged in misleading and deceptive

Paragraph of Amended Claim	Amended Statement of Claim (dated 21 August 2020)		Defence to Amended Statement of Claim (dated 25 September 2020)	Notice requiring defendant to give further and better particulars of defence to amended statement of claim (dated 23 October 2020)	Response to Notice Requiring Further Particulars of Statement of Defence (dated 29 January 2021)		Further Particulars Sought		Response of PwC
(d)	the advice, when there was not; and / or in all the circumstances, the conduct was misleading or deceptive, or likely to mislead or deceive	incomplete; and/or (ii)    correct and complete advice should have been given but was not; and/or (iii)   the conduct implied that there was a reasonable basis for the advice, when there was not; and/or (iv)   in all the circumstances, the conduct was misleading or deceptive, or likely to mislead or deceive; and	(b)	denied paragraph 59 of the Amended Statement of Claim. There are no further particulars that is required to give. For the avoidance of doubt, however, it repeats its answers in relation to paragraph 58(b)(i)– (vii) of the Amended Statement of Claim as set out at paragraph 15(c)(ii) and (iii) above.	‒	that on each occasion: (i)    the advice was incorrect and/or incomplete; and/or (ii)   correct and complete advice should have been given but was not; and/or (iii)   the conduct implied that there was a reasonable basis for the advice, when there was not.	conduct on any of the occasions identified by the plaintiffs. That is all that PwC is required to say in response to paragraph 58 given the terms in which the plaintiffs have chosen to frame paragraph 59.
(c) that because of the above the conduct was misleading or deceptive, or likely to mislead or deceive.
61	At all material times, a fiduciary relationship existed between PwC (as fiduciary) and the plaintiffs. Particulars		It denies paragraph 61	The plaintiffs require further particulars of the following: (a)     As to paragraph 61(a), whether the defendant denies one or more of the following: (i)     that PwC was the plaintiff’s accountant and sole New Zealand tax adviser; and (ii)    that, because of	(a)     Paragraph 61(a) to (d) of the Amended Statement of Claim are particulars of the allegation made at paragraph 61. There is no obligation on the part of PwC to plead to particulars. (b)     In any event, PwC has pleaded as to the services that it provided and its obligations in respect of those services at paragraphs 15 and 18 of the Defence, namely: i.   PwC provided tax		PwC has failed to respond to all of requests (a), (b) and (c) or has given an evasive response.		In respect of this paragraph, the plaintiffs persist in seeking alleged particulars that have already been answered.
(a)     As the plaintiffs’ accountant and sole New Zealand tax adviser, PwC owed fiduciary obligations to the plaintiffs. (b)     PwC undertook or agreed (either expressly or implicitly) to act for, or in the		PwC should clarify whether it denies (and provide particulars of what it says is the true position): ‒     that PwC was the plaintiff’s accountant and sole New Zealand tax adviser; and ‒     that, because					They say that PwC should clarify whether it denies that PwC was the plaintiffs’ accountant and sole tax adviser. PwC has already clearly denied this in both the defence and the response. It also gives particulars in the response of what it

Paragraph of Amended Claim	Amended Statement of Claim (dated 21 August 2020)	Defence to Amended Statement of Claim (dated 25 September 2020)	Notice requiring defendant to give further and better particulars of defence to amended statement of claim (dated 23 October 2020)	Response to Notice Requiring Further Particulars of Statement of Defence (dated 29 January 2021)	Further Particulars Sought	Response of PwC
interests of, the plaintiffs in respect of the provision of tax services, which services affected the interests of the plaintiffs in a legal or practical sense. (c)     The plaintiffs were in a position of disadvantage or vulnerability as regards PwC, in that they reposed trust and confidence in PwC to perform the tax services for their benefit, in circumstances where they lacked the power to adequately control or supervise the performance of the services. (d)     The plaintiffs relied on PwC to provide specialist tax advice and, in particular, to advise them on the continued availability of the NZ Group’s tax losses. (e)     The plaintiffs were entitled to rely on PwC not to act in a way that was contrary to their interests. (f)      In all the circumstances, there was a special relationship of trust and confidence between the plaintiffs and PwC bringing about fiduciary	this, PwC owed fiduciary obligations to the plaintiffs. (b)     As to paragraph 61(b), whether the defendant denies one or more of the following: (i)   that PwC provided tax services to the plaintiffs; (ii)     that PwC undertook or agreed (either expressly or implicitly) to act for, or in the interests of, the plaintiffs in respect of the provision of those services; and (iii)    those services affected the interests of the plaintiffs in a legal or practical sense. (c)    As to paragraph 61(d), whether the defendant denies one or more of the following: (i)   that PwC provided specialist tax advice to the plaintiffs, including by advising them on the continued	advice to members of the NZ Group for the period between 2000 and September 2018; ii.   this advice included advice in relation to carrying tax losses forward from time to time in response to specific queries; and iii.     save as expressly admitted in paragraphs 18 and 25 of the Defence (and as set out above), PwC denies each of the allegations set out at paragraph 18(a) to (c) above.	of this, PwC owed fiduciary obligations to the plaintiffs; ‒     that PwC undertook or agreed (either expressly or implicitly) to act for, or in the interests of, the plaintiffs in respect of the provision of its services; ‒     that PwC provided specialist tax advice to the plaintiffs, including by advising them on the continued availability of the NZ Group’s tax losses.	says is the true position in the response in that it expressly says that it provided tax advice to members of the NZ group between 2000 and September 2018 and made clear that this advice included advice in relation to carrying tax losses forward in response to specific queries. It otherwise denies paragraph 61 and there are no further particulars it needs to give of this denial.

Paragraph of Amended Claim	Amended Statement of Claim (dated 21 August 2020)	Defence to Amended Statement of Claim (dated 25 September 2020)	Notice requiring defendant to give further and better particulars of defence to amended statement of claim (dated 23 October 2020)	Response to Notice Requiring Further Particulars of Statement of Defence (dated 29 January 2021)	Further Particulars Sought	Response of PwC
duties.	availability of the NZ Group’s tax losses; and (ii) that the plaintiffs relied on PwC to provide this specialist tax advice.
63	Being aware that the Refresh Mechanism may contravene the GAAR, PwC breached its fiduciary duties owed to the plaintiffs: (a)       By placing itself in a position where its own interests conflicted with those of the plaintiffs, by continuing to act as the plaintiffs’ tax adviser when it was or should have been aware that its prior advice provided grounds for a claim by the plaintiffs against it. (b)       By failing to advise the plaintiffs to obtain independent advice when it was or should have been aware that its advice regarding the Refresh Mechanism was flawed. (c)       By failing to advise the plaintiffs of a potential claim against PwC in respect of prior negligent advice, when PwC was or should have been aware that	It denies paragraph 63	The plaintiffs require further particulars, as to paragraphs 63(e) and (f), of whether the defendant denies one or more of the following: (a)    that it advised the plaintiffs to implement and perpetuate the Refresh Mechanism; that the conduct particularised in paragraph 58(b)(i)– (vii)  of the amended statement of claim occurred; (b)    that it failed to advise the plaintiffs that the Refresh Mechanism may contravene the GAAR on each occasion that the conduct particularised in paragraph 58(b)(i)– (vii) of the amended statement of claim occurred; (c)     that it did not advise the plaintiffs that the Capital Distribution and the Share	(a)     The allegation in paragraph 63 of the Amended Statement of Claim is that PwC breached alleged fiduciary duties to the plaintiffs through the alleged failures outlined in that paragraph. (b)     Paragraph 63 of the Defence already clearly denies that PwC breached any of the alleged fiduciary duties to the plaintiffs through the alleged failures outlined in that paragraph. (c)     For the avoidance of doubt, however, PwC says the following: i.   it denies that it advised the plaintiffs to implement and perpetuate the Refresh Mechanism; ii.   in terms of whether the	PwC has failed to respond to requests (c) and (d) or has given an evasive response. PwC should clarify whether it denies (and provide particulars of what it says is the true position): ‒   that it failed to advise the plaintiffs that the refresh mechanism may contravene the GAAR on each occasion that the conduct particularised in paragraph 58(b)(i)– (vii) of the amended statement of claim occurred; ‒   that it did not advise the plaintiffs that the Capital Distribution and the Share Acquisition would result in the Continuity Breaches.	The particulars sought ignore what the plaintiffs have, in fact, pleaded at paragraph 63 of the Amended Statement of Claim. The entire predicate of paragraph 63 is that PwC breached its fiduciary duties to the plaintiffs.  In the statement of defence and the response PwC makes clear that it denies that it breached those duties. That is all that PwC is required to say in response to paragraph 63 given the terms in which the plaintiffs have chosen to frame paragraph 63.

Paragraph of Amended Claim	Amended Statement of Claim (dated 21 August 2020)	Defence to Amended Statement of Claim (dated 25 September 2020)	Notice requiring defendant to give further and better particulars of defence to amended statement of claim (dated 23 October 2020)	Response to Notice Requiring Further Particulars of Statement of Defence (dated 29 January 2021)		Further Particulars Sought	Response of PwC
its advice was flawed. (d)       On each occasion that it advised the plaintiffs to implement and perpetuate the Refresh Mechanism. (e)       By failing to advise the plaintiffs that the Refresh Mechanism may contravene the GAAR on each occasion that it:	Acquisition would result in the Continuity Breaches; and (d)  that the above conduct breached its fiduciary duties owed to the plaintiffs.	(d)	alleged conduct set out at paragraph 58(b)(i)-(vii) of the Amended Statement of Claim occurred, it admits that it performed the services set out in paragraph 18 of the Defence; and iii. it otherwise says that paragraph 58(b)(i)-(vii) remains inadequately particularised as to the date of the alleged conduct, the parties to it, and the documents recording that conduct and it, therefore, denies that conduct; it denies each of paragraph 20(c), (d), and (e) above (as already pleaded in paragraph 63 of the Defence).
i. Advised the NZ Group in respect of the Group Restructure.
ii. Advised the NZ Group on perpetuating the Refresh Mechanism from 1998 to 2018.
iii. Advised the NZ Group on the Capital Distribution and the Share Acquisition.
iv. Provided tax advice to the NZ  Group, as particularised at paragraph 18(d) above.
v. Acted as the NZ Group’s corporate tax compliance agent.
vi. Prepared and filed the NZ Group’s annual returns with Inland Revenue for

Paragraph of Amended Claim	Amended Statement of Claim (dated 21 August 2020)	Defence to Amended Statement of Claim (dated 25 September 2020)	Notice requiring defendant to give further and better particulars of defence to amended statement of claim (dated 23 October 2020)	Response to Notice Requiring Further Particulars of Statement of Defence (dated 29 January 2021)	Further Particulars Sought	Response of PwC
the financial years ended 30 June 2001 to 30 June 2018. vii. Provided yearly confirmation to GL and BILNZT’s auditors, regarding the tax losses reported in the annual reports of BILNZT and GL. (f)     By failing to advise the plaintiffs that the Capital Distribution and the Share Acquisition would result in the Continuity Breaches.
68	PwC breached its duty of care owed to the plaintiffs: (a)       On each occasion that it advised the plaintiffs to implement and perpetuate the Refresh Mechanism. (b)       By failing to advise the plaintiffs that the Refresh Mechanism may contravene the GAAR on each occasion that it: i.     Advised the NZ Group in respect of the Group Restructure. ii.    Advised the NZ Group on perpetuating the	It denies paragraph 68	The plaintiffs require further particulars of whether the defendant denies one or more of the following: (a)    that it advised the plaintiffs to implement and perpetuate the Refresh Mechanism; (b)    that the conduct particularised in paragraph 58(b)(i)– (vii) of the amended statement of claim occurred; (c)    that it failed to advise the plaintiffs that the Refresh Mechanism may contravene the GAAR on each occasion that the conduct particularised	(a)     The allegation in paragraph 68 of the Amended Statement of Claim is that PwC breached an alleged duty of care to the plaintiffs through the alleged conduct outlined in that paragraph. (b)     Paragraph 68 of the Defence already clearly denies that PwC breached the alleged duty of care to the plaintiffs through the alleged conduct outlined in that paragraph. (c)     For the avoidance of doubt, however, PwC says the	PwC has failed to respond to requests (c) and (d) or has given an evasive response. PwC should clarify whether it denies (and provide particulars of what it says is the true position): ‒   that it failed to advise the plaintiffs that the refresh mechanism may contravene the GAAR on each occasion that the conduct particularised in paragraph 58(b)(i)– (vii) of the amended statement of claim occurred; ‒   that it did not advise the plaintiffs that the	The particulars sought ignore what the plaintiffs have, in fact, pleaded at paragraph 68 of the Amended Statement of Claim. The entire predicate of paragraph 68 is that PwC breached a duty of care owed to the plaintiffs. In the statement of defence and the response PwC makes clear that it denies that it breached such a duty of care. That is all that PwC is required to say in response to paragraph 68 given the terms in which the plaintiffs have chosen to frame paragraph 68.

Paragraph of Amended Claim	Amended Statement of Claim (dated 21 August 2020)		Defence to Amended Statement of Claim (dated 25 September 2020)	Notice requiring defendant to give further and better particulars of defence to amended statement of claim (dated 23 October 2020)	Response to Notice Requiring Further Particulars of Statement of Defence (dated 29 January 2021)		Further Particulars Sought	Response of PwC
Refresh Mechanism from 1998 to 2018. iii. Advised the NZ Group on the Capital Distribution and the Share Acquisition.	in paragraph 58(b)(i)– (vii) of the amended statement of claim occurred; (d)    that it did not advise the plaintiffs that the Capital Distribution and the Share Acquisition would result in the Continuity Breaches; and (e)    that the above conduct breached its duty of care owed to the plaintiffs.	(d)	following: i.     it denies that it advised the plaintiffs to implement and perpetuate the Refresh Mechanism; ii.      in terms of whether the alleged conduct set out at paragraph 58(b)(i)-(vii) of the Amended Statement of Claim occurred, it admits that it performed the services set out in paragraph 18 of the Defence; and iii.      it otherwise says that paragraph 58(b)(i)-(vii) remains inadequately particularised as to the date of the alleged conduct, the parties to it, and the documents recording that conduct and it, therefore, denies that conduct; it denies each of paragraph 24(c), (d), and (e) above (as already pleaded in paragraph 68 of	Capital Distribution and the Share Acquisition would result in the Continuity Breaches.
iv. Provided tax advice to the NZ Group, as particularised at paragraph 18(d) above.
v. Acted as the NZ Group’s corporate tax compliance agent.
vi. Prepared and filed the NZ Group’s annual returns with Inland Revenue for the financial years ended 30 June 2001 to 30 June 2018.
vii. Provided yearly confirmation to GL and BILNZT’s auditors, regarding the tax losses reported in the annual reports of BILNZT and GL.
(c)				By failing to advise the plaintiffs that the Capital Distribution

Paragraph of Amended Claim	Amended Statement of Claim (dated 21 August 2020)	Defence to Amended Statement of Claim (dated 25 September 2020)	Notice requiring defendant to give further and better particulars of defence to amended statement of claim (dated 23 October 2020)	Response to Notice Requiring Further Particulars of Statement of Defence (dated 29 January 2021)	Further Particulars Sought	Response of PwC
and the Share Acquisition would result in the Continuity Breaches.	the Defence).
74	PwC breached the implied term included in the contract(s):	It denies paragraph 74	The plaintiffs require further particulars of whether the defendant denies one or more of the following: (a)    that it advised the plaintiffs to implement and perpetuate the Refresh Mechanism; (b)    that the conduct particularised in paragraph 58(b)(i)– (vii) of the statement of claim occurred; (c)    that it failed to advise the plaintiffs that the Refresh Mechanism may contravene the GAAR on each occasion that the conduct particularised in paragraph 58(b)(i)– (vii)  of the statement of claim occurred; (d)    that it did not advise the plaintiffs that the Capital Distribution and the Share Acquisition would result in the Continuity Breaches; and (e)    that the above conduct breached an implied term of the contracts.	(a)  The allegation in paragraph 74 of the Amended Statement of Claim is that PwC breached an implied term in the “contract(s)” on the alleged occasions identified in that paragraph. (b)  It is impossible for PwC to plead to paragraph 74 given the failure by the plaintiffs to sufficiently identify the alleged “contract(s)” that PwC is alleged to have breached. PwC has, therefore, appropriately, denied paragraph 74. (c)   For the avoidance of doubt, however, PwC says the following: i.   it denies that it advised the plaintiffs to implement and perpetuate the Refresh Mechanism; ii.   in terms of whether the alleged conduct set out at paragraph 58(b)(i)-(vii) of the	PwC has failed to respond to requests (c) and (d) or has given an evasive response. PwC should clarify whether it denies (and provide particulars of what it says is the true position): ‒     that it failed to advise the plaintiffs that the refresh mechanism may contravene the GAAR on each occasion that the conduct particularised in paragraph 58(b)(i)– (vii) of the amended statement of claim occurred; ‒     that it did not advise the plaintiffs that the Capital Distribution and the Share Acquisition would result in the Continuity Breaches.	The particulars sought ignore what the plaintiffs have, in fact, pleaded at paragraph 74 of the Amended Statement of Claim. The entire predicate of paragraph 74 is that PwC breached an implied contractual term owed to the plaintiffs.  In the statement of defence and the response PwC makes clear that it denies that it breached such a term. That is all that PwC is required to say in response to paragraph 74 given the terms in which the plaintiffs have chosen to frame paragraph 74.
(a)    On each occasion that it advised the plaintiffs to implement and perpetuate the Refresh Mechanism.
(b) By failing to advise the plaintiffs that the Refresh Mechanism may contravene the GAAR on each occasion that it:
i.    Advised the NZ Group in respect of the Group Restructure.
ii. Advised the NZ Group on perpetuating the Refresh Mechanism from 1998 to 2018.
iii. Advised the NZ Group on the Capital Distribution and the Share Acquisition.
iv. Provided tax advice to the NZ  Group, as particularised at paragraph 18(d) above.
v. Acted as the NZ

Paragraph of Amended Claim	Amended Statement of Claim (dated 21 August 2020)		Defence to Amended Statement of Claim (dated 25 September 2020)	Notice requiring defendant to give further and better particulars of defence to amended statement of claim (dated 23 October 2020)	Response to Notice Requiring Further Particulars of Statement of Defence (dated 29 January 2021)	Further Particulars Sought	Response of PwC
Group’s corporate tax compliance agent.	Amended Statement of Claim occurred, it admits that it performed the services set out in paragraph 18 of the Defence; and iii. it otherwise says that paragraph 58(b)(i)- (vii) remains inadequately particularised as to the date of the alleged conduct, the parties to it, and the documents recording that conduct and it, therefore, denies that conduct; (d) it denies each of paragraph 30(c), (d), and (e) above (as already pleaded in paragraph 74 of the Defence).
vi. Prepared and filed the NZ Group’s annual returns with Inland Revenue for the financial years ended 30 June 2001 to 30 June 2018.
vii. Provided yearly confirmation to GL and BILNZT’s auditors, regarding the tax losses reported in the annual reports of BILNZT and GL.
(c)		By failing to advise the plaintiffs that the Capital Distribution and the Share Acquisition would result in the Continuity Breaches.
76	The defendant says that each of the plaintiffs’ claims is time barred and relies on:	The plaintiffs require further particulars of the following in relation to each subparagraph:	(a)  Paragraph 76 of the Defence already clearly states that each of the plaintiffs’ claims is time- barred. There are no further particulars required of this allegation. (b)  PwC relies upon the fact that the proceedings were filed more than six years after the date of alleged acts or omissions by	Affirmative defences should be pleaded in a similar way to a statement of claim with facts and particulars pleaded to properly and fairly inform the plaintiff of the defendant’s case. PwC’s affirmative defences are completely lacking in pleaded facts and particulars. They fail to properly and fairly inform the plaintiff of the	The defence and further particulars are both clear that the identified clauses and statutes apply to all of the plaintiffs’ causes of action. The further particulars also refer to PwC relying on the fact that these proceedings were filed six years after most of the acts referred to in paragraph 18 of the Amended Statement of Claim.
(a)      Clauses 7.1 and 7.2 of the 2012 Contract. (b)      Section 4 of the Limitation Act 1950.	(a) Which of the plaintiffs’ causes of action or part thereof are said to be time barred and how.
(c) Section 11 of the Limitation Act 2010.	(b) The facts that are relied upon.
(d)   Section 43A of the Fair Trading Act 1986.

Paragraph of Amended Claim	Amended Statement of Claim (dated 21 August 2020)	Defence to Amended Statement of Claim (dated 25 September 2020)	Notice requiring defendant to give further and better particulars of defence to amended statement of claim (dated 23 October 2020)	Response to Notice Requiring Further Particulars of Statement of Defence (dated 29 January 2021)	Further Particulars Sought	Response of PwC
PwC set out in paragraph 18 of the Amended Statement of Claim.	defendant’s case.	The plaintiffs cannot seriously be arguing that they cannot identify which of the acts identified in paragraph 18 occurred six years or more prior to when they filed the proceedings in December 2019. If they are saying this, then, for the avoidance of doubt, PwC refers to the fact that for 18(a), (b), and (c) claims based on acts prior to 6 November 2013 will be time-barred as will claims based on the acts set out in 18(d)(i) to (xv).
77	If it is held that with respect to any of the plaintiffs’ causes of action that they suffered loss and that the defendant is liable for those losses (which is denied) then the defendant says that the total amount of its liability is capped pursuant to the 2000 Terms of Engagement, clause 7.2 of the 2005 Contract and clause 6.1(xii) and clause 6.2 of the 2012 Contract.	The plaintiffs require further particulars of: (a)    Which term or terms of the 2000 Terms of Engagement are said to be applicable and how. (b)    How clause 7.2 of the 2005 Contract and clauses 6.1(xii) and 6.2 of the 2012 Contract are said to be applicable.	(a)    Paragraph 7 of the “Terms of Business of Pricewaterhouse Coopers” in the 2000 Terms of Engagement is applicable as it limits the total aggregate liability of PwC for loss or damage to an amount equal to three times the fees paid to PwC. (b)    Under clause 7.2 of the 2005 Contract and clauses 6.1(xii) and 6.2 of the 2012 Contract, the total aggregate liability of PwC for loss will be three times the fees paid to PwC.	As above.	The further particulars are clear as to both the terms that PwC relies upon and the effect that PwC says that they have. There is nothing more that PwC could say in relation to the effect of this clause on the plaintiffs’ claimed loss as the plaintiffs have not seen fit to attempt to quantify that loss, instead leaving this to be quantified at trial.
78	If it is held that with respect to any of the plaintiffs’ causes of action that they suffered loss and that the defendant is liable for those	The plaintiffs require further particulars of: (a) Which term or terms	(a)     Under paragraph 7 of the “Terms of Business of Pricewaterhouse Coopers” in the 2000	As above.	The further particulars are clear as to both the terms that PwC relies upon and the effect that PwC says

Paragraph of Amended Claim	Amended Statement of Claim (dated 21 August 2020)	Defence to Amended Statement of Claim (dated 25 September 2020)	Notice requiring defendant to give further and better particulars of defence to amended statement of claim (dated 23 October 2020)	Response to Notice Requiring Further Particulars of Statement of Defence (dated 29 January 2021)	Further Particulars Sought	Response of PwC
losses (which is denied) then the defendant relies on the 2000 Terms of Engagement, clause 7.3 of the 2005 Contract, clause 6.1(x) of the 2012 Contract and section 3 of the Contributory Negligence Act 1947 and says that the defendant’s liability should be reduced to the extent that the plaintiff contributed to its own loss and, in any event, cannot exceed the maximum liability cap	of the 2000 Terms of Engagement are said to be applicable and how. (b)    How clause 7.3 of the 2005 Contract and clause 6.1(x) of the 2012 Contract is said to be applicable. (c)    How the plaintiffs are said to have contributed to their own loss.	Terms of Engagement, clause 7.3 of the 2005 Contract and clause 6.1(x) of the 2012 Contract, any liability on the part of PwC will be reduced to take into account the contribution to that loss by the plaintiffs’ actions; (b)     If the plaintiffs have suffered any loss (which is denied), that loss has been caused by their own actions as the Refresh Mechanism was instigated the plaintiffs based on advice from their In-House Tax Team, as set out in paragraph 11 above.	that they have. In their further particulars, PwC has specifically referenced the facts that they rely in relation to contributory negligence, namely that the Refresh Mechanism was the creation of the plaintiffs and was based upon their internal advice.