Biscuit Creek Forest Limited v Vallance

[2019] NZHC 1814

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2018-454-56

[2019] NZHC 1814

BETWEEN

BISCUIT CREEK FOREST LIMITED

Plaintiff

AND

SIMON FREDERICK VALLANCE and ROSA VALLANCE

Defendants

Hearing:	25 July 2019
Appearances:	W McCartney for plaintiff E Cox for defendants
Judgment:	30 July 2019
Reissued:	1 August 2019

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[1]    This proceeding involves a dispute relating to transactions for the sale and purchase of a farm in the Wairarapa, and certain forestry rights in relation to a stand of trees on that farm. The plaintiff’s claim was the subject of an unsuccessful application for summary judgment on 13 December 2018.1

[2]    Since the plaintiff’s application for summary judgment was dismissed, the parties have been proceeding through the interlocutory stages, and both parties have now applied for orders for further and better discovery under r 8.19 of the High Court Rules 2016. The plaintiff, Biscuit Creek Forest Ltd, has also applied for orders for particular discovery against two non-parties, Eastern NZ Forestry Ltd and

1      Biscuit Creek Forest Ltd v Vallance [2018] NZHC 3291.

BISCUIT CREEK FOREST LIMITED v VALLANCE [2019] NZHC 1814 [30 July 2019]

Farman Turkington Forestry Ltd, under r 8.21. The parties’ applications for further and better discovery are detailed.

[3]    I mention, without saying more, that pt 8 of the Rules imposes obligations on solicitors and counsel acting for parties in litigation to cooperate in relation to discovery. Such cooperation is necessary in the interests of the parties to ensure that litigation is conducted efficiently. Interlocutory litigation relating to such things as discovery is not generally conducive to the efficient determination of the substantive dispute.

[4]    Fortunately, by the conclusion of the hearing in this case, there was a sufficient level of cooperation between Mr McCartney for the plaintiff and Mr Cox for the defendants, Mr Simon and Mrs Rosa Vallance, to enable the Court to make a series of orders by consent.

[5]Accordingly, I now make the following orders:

(a)by Wednesday 31 July 2019, the plaintiff is to provide the defendants with particulars as to the basis upon which it is claiming damages, that is to say as to the quantum of its claim and how this is calculated. These may be provided in the form of an amended statement of claim or as a stand-alone document, but of course must be filed with the Court as well as served on the defendants, and will become a component of the plaintiff’s pleading. It will be a point of reference in terms of assessing relevance of documents for discovery purposes under the balance of this order;

(b)for the sake of completeness, I record that the defendants’ ongoing discovery obligations under r 8.18 are not superseded by the orders that follow;

(c)by Thursday 22 August 2019 the defendants are to review  the  Gibson Sheat files relating to the sale by the plaintiffs of their farm

known as Te Kanuka and discover any relevant documentation not already discovered;

(d)also by Thursday 22 August 2019, the defendants’ solicitors are to review the WCM Legal files relating to the sale by the defendants of the forestry rights referred to in the pleadings and discover any relevant and discoverable material therein. In relation to this, I record that the view I have reached is that irrespective of whether those forestry rights were at the relevant time owned by the defendants or by the trustees of their family trust, of which they are only two of three, the defendants are entitled to view and copy the contents of the WMC Legal files and have control of the same for the purposes of discovery. Obviously, WMC Legal will have to provide those files to the defendants’ solicitors, Gibson Sheat, for discovery purposes, but I see no reason why that should not occur forthwith, and I am informed that  the WCM Legal partner responsible for the matter has indicated as much, as the Court would expect;

(e)pursuant to r 8.21, I make an order for third party discovery against Eastern NZ Forestry in the terms sought by the plaintiff in its amended application dated 27 June 2019. Eastern NZ Forestry’s reasonable costs associated with the preparation of any affidavit of documents are to be met by the plaintiff.

[6]    I  record  that  the  plaintiff  is  no  longer  seeking  an  order  against   Farman Turkington Forestry.

[7]    One of the orders sought by the plaintiffs against both the defendants and Eastern NZ Forestry was for documentation relating to the date  upon  which  Eastern NZ Forestry’s December 2016 estimate of the value of the Te Kanuka forest was completed and when that estimate became known to the defendants (paras 1(d) and 3(a) of the plaintiff’s amended application dated 27 June 2019). Such documentation may or may not exist on the Gibson Sheat files or the WCL Legal files. Another possibility is that such documentation is held by Mr Phil Guscott who

provided advice to the partnership that owned the forest. It is open of course to the plaintiff to apply for an order for discovery against Mr Guscott (or his firm). However, a more practical option would be for Mr Guscott to identify any such documentation and provide copies to the defendants’ solicitors for discovery purposes. That would certainly assist the parties and Mr Guscott’s cooperation would be appreciated by the Court.

[8]    As to costs, although Mr McCartney pressed for a costs order, the view I take is that in the particular circumstances of this case, where both parties sought further and better discovery, and both are able to advance arguments that that was only necessary because of the approach taken by the other party, costs should be reserved and dealt with at the conclusion of the proceeding.

[9]    I reserve leave to both parties to come back to the Court by memorandum if any further orders, or any elaboration on the orders I have made, are necessary, or in the event of difficulties arising preventing the orders being adhered to.

[10]   Finally, I ask the Registrar to liaise with counsel for the purposes of arranging a further case management conference, not before Thursday 5 September 2019, at which I would expect to be in a position to deal with any outstanding interlocutory matters, fix a close of pleadings date and set this matter down for trial.

Associate Judge Johnston

Solicitors:

Gawith Burridge, Masterton for plaintiff Gibson Sheat, Wellington for defendants