Body Corporate 355492 v Queenstown Lakes District Council

[2022] NZHC 983

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2015-425-36

[2022] NZHC 983

BETWEEN

BODY CORPORATE 355492

First Plaintiff

JOHN ROBERT CHESTNEY & ORS
Second Plaintiffs

AND

QUEENSTOWN LAKES DISTRICT COUNCIL

First Defendant

ELLIOTT ARCHITECT LIMITED (IN LIQUIDATION)

Second Defendant

EDWIN GERARD ELLIOTT
Third Defendant

HOLMES STRUCTURES LIMITED (IN LIQUIDATION)

Fourth Defendant

continued….2

Hearing:

(On the papers)

Appearances:

D J Powell and G B Lewis for Plaintiffs

C M Meechan QC and M L Rhodes for First Defendant

Judgment:

10 May 2022

JUDGMENT OF ASSOCIATE JUDGE LESTER

(Costs in relation to plaintiffs’ application for orders for discovery)

BODY CORPORATE 355492 v QUEENSTOWN LAKES DISTRICT COUNCIL [2022] NZHC 983 [10 May 2022]

AND

ARCH UNDERWRITING LIMITED AT LLOYD’S LIMITED

Fifth Defendant/Fifth Third Party

ASTA MANAGING AGENCY LIMITED
Sixth Defendant/Sixth Third Party

HARDY (UNDERWRITING AGENCIES) LIMITED
Seventh Defendant/Seventh Third Party

LIBERTY MANAGING AGENCY LIMITED

Eighth Defendant/Eighth Third Party

STEPHEN BRUCE McLEAN
First Third Party

JULIE RAEWYN WENSLEY JACK
Second Third Party

PETER LAWSON

Third Party

DANIEL STEWART
Fourth Third Party

DE GEEST CONSTRUCTION LIMITED
Ninth Third Party

DE GEEST BATHROOMS LIMITED

Tenth Third Party

[1]    In my Judgment of 1 April 2022 (the April Judgment), I dismissed the plaintiffs’ application for orders for discovery against the first defendant, Queenstown Lakes District Council (QLDC).1 I concluded the April Judgment with the observation that:2

There was no reason why costs and disbursements should not follow the event on a 2B basis. If no submissions on costs (not more than five pages) is filed within five working days of the date of this Judgment, that will be the order as to costs.

1      Body Corporate 355492 v Queenstown Lakes District Council [2022] NZHC 658.

2      Body Corporate 355492 v Queenstown Lakes District Council, above n 1, at [49].

[2]    Counsel for the plaintiffs took up the invitation to file submissions on costs. In those submissions the plaintiffs claimed they had achieved sufficient success to warrant being awarded costs, despite the dismissal of their application in relation to all the categories of documents sought.

[3]    I agree with the submissions filed on behalf of QLDC, that the outcome of the hearing cannot be described as a success for the plaintiffs.

In what way do the plaintiffs say they have been successful?

[4]    The plaintiffs’ application for discovery was primarily aimed at determining whether QLDC had any internal documents or correspondence with third parties in relation to the plaintiffs’ applications for building consents for remedial work carried out at Oaks Shores or in relation to the building inspection process. The plaintiffs’ submissions were based on evidence from its architect that QLDC may have documents that record comments or notes either internal or with its consultants as to the purpose or adequacy of the proposed remedial works. The submission was that such notes or commentary may disclose what QLDC truly believed in respect of the merits  or  reasonableness  of  the  remedial  work  proposed  and  undertaken  by   the plaintiffs.

[5]    In response to that request, a QLDC officer, Ms Fletcher, undertook a search for the type of documents the plaintiffs proposed may exist.

[6]    Counsel for the plaintiffs submits that their application was ultimately successful because some of the documents informally disclosed by QLDC were “either produced by or sent to Maynard Marks or Brosnan Construction” (emphasis added by plaintiffs). Maynard Marks and Brosnan Construction are contractors to the plaintiffs. They submit they achieved a measure of success in that documents were produced and/or identified in respect to the application.

[7]    I note there was some misunderstanding between counsel and the Court in respect  of  the  timing  of  informal  disclosure  of  the  documents  identified  by  Ms Fletcher. However, that the informal disclosure produced correspondence between QLDC and the plaintiffs’ contractors does not, in my view, take the plaintiffs’ costs

argument any further. As I noted in the April Judgment at [35], Ms Fletcher acknowledged that the vast majority of the documents she located in her search “were either produced by or sent to the plaintiffs’ contractors.”

[8]    However, as Ms Meechan QC, counsel for the first defendant, submitted and I recorded in the April Judgment, because:3

… there was no dispute about the scope of what was applied for by the plaintiffs in their remedial work  consent  applications,  no  dispute  as  to  the scope of the consents that were granted and no dispute in respect of the code compliance issued for Block 1 or the information provided in order to obtain code compliance … discovery in relation to those steps is not required.

[9]    Mr Powell, counsel for the plaintiffs, met Ms Meechan’s submission by saying, in respect of those categories of documents as identified by Ms Meechan as not in dispute, such would need to be disclosed if they contained the notes or memoranda that I have already referred to.

[10]   Accordingly, the fact the documents identified by Ms Fletcher, and now informally disclosed in their entirety, contained documents sent to Maynard Marks or Brosnan Construction is beside the point. Without the notes or memoranda, there was no suggestion those documents needed to be discovered. The plaintiffs say a search of their own records revealed that they did not have many of the documents informally disclosed, but ultimately that is a matter between the plaintiffs and their contractors, that the plaintiffs may not have had all the correspondence does not make that correspondence relevant.

[11]   I recorded in the April Judgment at [45] that it was not for the defendants to provide a list of documents “to allow the plaintiffs to check that they have all documents it or its contractors created or received in respect of the remedial works.”

[12] Again, the issue is relevance. Mr Powell did not in submissions attempt to meet Ms Meechan’s point noted at [8] above, other than as I have described at [9] above.

3      Body Corporate 355492 v Queenstown Lakes District Council, above n 1 at [30].

[13] In costs submissions, Mr Powell says that category 3 of the discovery sought by the plaintiffs (as listed at [9] of the April Judgment)4 was said not to be subject to his acknowledgment recorded at [39] of the April Judgment and noted at [9] above. I do not see category 3 as being any different from the other categories of documents relating to the consent process.

[14]   The misunderstanding in respect of the informal discovery of documents was that the Court had understood all of the documents located by Ms Fletcher were provided, when only a limited number of the documents were provided. The remaining documents have now been provided. It is not uncommon in discovery disputes for the party from whom documents are sought to, in the interests of avoiding costs and delay, make documents available without acknowledging that they are relevant. That is what happened here. I do not see QLDC adopting that pragmatic approach as meaning the plaintiffs had success in their application.

[15]   I also noted that several of the documents relating to the remedial works were on QLDC’s on-line document portal. Mr Powell says that the plaintiffs were unaware of this on-line portal.   However, that is beside the point when those documents   were not  relevant.  QLDC  having   provided   an   affidavit   confirming   there  were documents available on the one-line portal does not amount to success when those documents were not relevant. As to the documents that were provided informally, it is said there has been no determination by the Court that they are not relevant. The practical point is, as those documents relate only to the consent process, as recorded in the April judgment, Mr Powell essentially acknowledged they were not relevant.

[16]   I see no reason to re-visit my first impression that costs should follow the event in favour of the first defendant and I confirm that order.5

4      “Letters, memoranda, emails and/or other communications with persons outside of QLDC in relation to the Building Consent Applications.”

5      Body Corporate 355492 v Queenstown Lakes District Council, above n 1, at [31] and [39].

[17]   There is an award of costs in favour of the Queenstown Lakes District Council on a 2B basis in the sum of $6,214.00, together with disbursements of $110, being the filing fee on the notice of opposition.

Associate Judge Lester

Solicitors:

Grimshaw & Co, Auckland (for Plaintiffs)

Wynn Williams, Christchurch (for First Defendant) Anthony Harper, Christchurch (for Tenth Third Party)

Copy to counsel:
C M Meechan QC, Barrister, Auckland (for First Defendant)