Body Corporate 366611 v Downer New Zealand Ltd

[2019] NZHC 2656

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2015-404-3077

[2019] NZHC 2656

IN THE MATTER OF

The Empire Apartments

BETWEEN

BODY CORPORATE 366611

First Plaintiff

D A BEVAN ENTERPRISES LIMITED & OTHERS

Second Plaintiffs

AND

DOWNER NEW ZEALAND LIMITED

Defendant

Hearing:	16 October 2019
Appearances:	SC Price, K Muldrew and ENL Peart for the Plaintiffs S Robertson and T Dempster for the Defendant
Judgment:	16 October 2019

ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELL

Solicitors:

MinterEllisonRuddWatts, Auckland, for the Plaintiffs Kensington Swan, Auckland, for the Defendant

BODY CORPORATE 366611 v DOWNER NEW ZEALAND LIMITED [2019] NZHC 2656 [16 October 2019]

[1]    Downer New Zealand Limited, the defendant, applies for further discovery under rr 8.18 and 8.19 of the High Court Rules 2016. This is a leaky building case. The plaintiffs are the body corporate and some, but not all, of the owners of the Empire Apartments at 21–23 Whittaker Place Grafton, Auckland. The apartments are used for student accommodation. Many of the owners are investors who do not occupy the apartments. Many of the owners have leased their apartments to a property management company, Theta Management Limited, which in turn grants tenancies to students.

[2]    Downer New Zealand Limited built the apartments under a design and build contract with a developer, Signature Developments Empire Limited, from 2004 to 2006. The apartments are a twin-tower building on a podium, some 17 floors high. There are over 300 units.

[3]    There has been earlier litigation concerning the apartments. That proceeding is CIV-2012-404-6418. In that case, the body corporate and owners sued Downer New Zealand Limited and the developer, Signature Developments Empire Limited, for defects that are not in issue in this case. There was also discovery. That case settled.

[4]    This case started in December 2015. In December 2018, Lang J gave trial directions. The close of pleading date was 31 July 2019. The plaintiffs' evidence was to  be  served  by  30 September 2019.   Downer's  evidence  is  to  be  served  by   31 January 2020. Lang J directed that experts were to confer and file reports in February/March 2020, and there would be time for a mediation in March/April 2020. The case has been given a fixture for eight weeks beginning 13 July 2020.

Preliminary matters

[5]    While   the   plaintiffs   were   required   to   deliver   their   evidence   by    30 September 2019, there has been slippage. The plaintiffs are awaiting a tender from a proposed remedial contractor. Further evidence is to be given as to that tender and evidence is to come from a quantity surveyor. Mr Price explained that he has been pressing for the tenderer to get back urgently, but he could give no clear date when that information would come to hand or when the plaintiffs' evidence would be

complete. He acknowledged that the defendant ought to have an extension of time to deliver its evidence, and I accept the point. It is not clear at this stage whether the defendant will need to see all the plaintiffs' evidence before it can complete its evidence, or whether an extension of time should only apply to evidence as to remedial scope and quantum. At this stage, I indicate that an extension for the defendant should go to evidence as to remedial scope and quantum, not as to liability; but I reserve leave to Downer to come back if that remains a problem.

[6]    At the same time as the plaintiffs complete their evidence they are to file and serve a new statement of claim. That new statement of claim is to provide the final quantum of the plaintiffs' claim. At the moment there are only general pleadings as to the amount of the plaintiffs' claim. For example, repair costs are estimated at

$10 million. That statement of claim cannot be filed until the plaintiffs have the information as to the amount of the plaintiffs' claim. Leave is also granted to the plaintiffs to file and serve a reply to the statement of defence.

[7]    A memorandum of the plaintiffs, for this hearing, recorded that certain owners had dropped off. In some cases, they are companies that have been removed from the Companies Register. I record that the owners of the following units are no longer plaintiffs in the proceeding: 513, 514, 516, 517, 825, 826, 1023, 1024, 1117, 1220, 1617, 1627 and 1929. The fact that those owners are no longer plaintiffs in the proceeding means that damages may no longer be able to be claimed for losses suffered by the owners of those units. It appears, however, that the body corporate will still be able to maintain its claim for damages it has suffered - for example, the cost of remedying the defects it complains of.1

Background

[8]The current statement of claim pleads these defects:

1      Body Corporate S73368 v Otway [2018] NZCA 612 at [45]-[55]; Body Corporate 324525 v Stent

[2017] NZHC 2857 at [137]-[150].

(a)Water entry at the perimeter of windows due to defective air seals (air seals formed to window openings consist of expanding foam with no PEF rod support which has created a path for moisture entry).

(b)Water entry around extractor fan penetrations through concrete panel façade due to lack of rear air seal to the penetrations.

(c)Water entry at concrete panel façade joints due to incomplete upstand to horizontal panels and absence of suitable flashing, resulting in a void in the panel where water can penetrate.

(d)Formation of condensation of internal wall linings and resultant mould proliferation due to lack of sufficient insulation and use of steel (rather than wood) battens forming a thermal break, contrary to Building Code Clause E3 – Internal Moisture.

The estimated cost of repairing these defects is said to be in the order of $10 million. Remedial work has not been carried out. The plaintiffs plead three causes of action against Downer: a breach of a weathertightness guarantee given by Downer to Sanctuary Developments Empire Limited, which has been assigned to the plaintiffs, and two causes of action in negligence based on different duties of care.

[9]    Downer's statement of defence generally denies liability but also pleads nine affirmative defences. For this decision the important ones are:

(a)contributory negligence by the body corporate;

(b)the owners not keeping the Empire Apartments in a good state of repair;

(c)failure of the unit owners to safeguard their own interests; and

(d)failure to mitigate.

[10]   Because it is relevant to the discovery application I focus on the defence of contributory negligence, in particular, that alleged against the body corporate. Paragraph 51 of the statement of defence pleads:

If the Court finds that the defendant caused loss to the plaintiffs (which is denied) then the first plaintiff caused or contributed to the loss in part or in full and any award should be reduced to the extent that this Court deems just in the circumstances, pursuant to under s 3 of the Contributory Negligence Act 1947.

[11]   Paragraph 52 gives particulars of the first plaintiff's duty to keep the common property in a state of good repair and pleads the maintenance and repair responsibilities under s 138 of the Unit Titles Act 2010. Paragraph 52.6 pleads details of failure to carry out proper maintenance of the building:

(a)Failing to carry out regular, or any, maintenance on or cleaning of the exterior of the building.

(b)Failing to carry out regular inspections, repairs and maintenance of the exterior window joinery and sealant to the openings in the concrete façade.

(c)Failing to carry out regular inspections, repairs and maintenance of the sealants used around exterior fan penetrations through the concrete façade.

(d)Failing to carry out regular inspections, repairs and maintenance of:

(i)the sealants used around the pre-cast panels of the concrete façade; and

(ii)any displaced or damaged neoprene baffles in the vertical panel joints.

(e)Failing to ensure that the occupants of the units took appropriate steps to ventilate their units through the use of opening windows so as to minimise the incidence of condensation within the apartments.

(f)Failing to comply at all times with the operating instructions (including cleaning procedures) of all ventilation system in the units, including the air extractors in the bathroom and toilet areas and the rangehood in the kitchen, as a consequence of which air extractor fans were either not operational or operating at severely reduced capacities.

(g)Permitting unit occupants to cook in the unventilated areas of the units by various means including microwaves and/or rice cookers and/or cooking hobs without adequately ventilating the units.

(h)Failing to report immediately or within a reasonable time of any defect, loss or damage becoming apparent.

(i)Failing to control, inhibit and remove mould evident in the interiors of the units.

[12]   Fogarty J made orders for tailored discovery in October 2016 in terms of a joint memorandum of counsel. That memorandum recorded classes of documents to be disclosed by the plaintiff (and other classes of documents to be disclosed by the defendant). For the plaintiffs' disclosure these are the heads of documents to be disclosed:

(a)Second plaintiff's documents relating to maintenance/repairs and the defects;

(b)Second plaintiffs’ documents relating to losses;

(c)Plaintiffs' expert's documents;

(d)Plaintiffs' remedial works documents;

(e)First plaintiff's documents relating to maintenance/repairs and defects; and

(f)Second plaintiff's conveyancing file.

Under each of those heads classes of documents are identified.

[13]   In a minute of 7 October 2016, Fogarty J recorded that he had been advocating that the parties should make progress on tailored discovery, applying the adverse documents test for classes of documents; but if that proved unsatisfactory he would welcome an application under r 8.17, with a view to ruling on any matters of dissatisfaction by Downer. He indicated that an application under r 8.17 would be received benevolently if the criteria for standard discovery did not serve. I take him to be saying that while groups of documents were to be disclosed, the criterion for relevance was under the adverse documents test. There was not to be more intensive disclosure of documents under some other relevancy test. For example, he must have

contemplated that if Downer were to seek disclosure of documents under a line of enquiry test under the well-known Peruvian Guano decision,2 that would have to be the subject of another application.

[14]    The parties agreed that documents disclosed in the earlier proceeding could also be treated as disclosed for this proceeding. Accordingly, the plaintiffs' discovery also includes the affidavit of documents from the earlier proceeding. For this proceeding it filed affidavits of documents on 31 August 2017, 13 October 2017 and 28 February 2018.

[15]   In September 2017, Downer applied under r 7.48 for an enforcement order contending, amongst other things, that the plaintiffs had not complied with Fogarty J's discovery order. The affidavit in support of the application noted categories of documents alleged not to have been disclosed, including documents going to repairs and maintenance. In December 2017, van Bohemen J ordered the plaintiffs to file and serve a further affidavit of documents. That led to the affidavit of documents of February 2018. The plaintiffs have put in evidence correspondence between the plaintiffs' and the defendants' lawyers at that time, dealing with the adequacy of the plaintiffs' discovery.

[16]   The court file shows that Downer did not take any formal steps in respect of the  plaintiffs'  discovery  until  it  filed  its  application  for  further  discovery  on  31 July 2019, the close of pleadings date. Downer has, however, given an explanation in submissions as to steps taken following the plaintiffs' affidavit of documents of  28 February 2018. While this was by submission rather than evidence, the matters recorded in the timeline handed up seem to correspond with matters on the Court file where steps are recorded.

[17]   During 2018, the plaintiffs pressed Downer on the adequacy of its discovery. The plaintiffs filed an application for further discovery and that eventually came to a hearing before Johnstone AJ who gave directions. The case had been given a fixture

2      Compagnie Financière et Commerciale du Pacifique v Peruvian Guano Company (1882) 11 QBD 55 (CA).

already; that fixture was vacated. The plaintiffs also applied for non-party discovery and requested particulars.

[18]   Downer says that it did not begin extensive investigation into the adequacy of the plaintiffs' discovery until March this year. It completed its investigations by June and began correspondence with the plaintiffs setting out its contentions that the plaintiffs' discovery was inadequate. It did not receive full answers from the plaintiffs. Downer then threatened an application. While it filed its application on 31 July 2019, it did not serve the application on the plaintiffs immediately. Later, it filed an amended application with supporting affidavits at the same time. Those steps were taken after the close of pleadings date. Accordingly, the need for leave under r 7.7 of the High Court Rules has been triggered.

Downer’s discovery and leave applications

[19]    Downer says that from its inspection of the documents disclosed by the plaintiffs, their discovery is incomplete. It puts it into three groups:

(a)incomplete sets: where documents might be thought to form a group but only some documents in the group have been disclosed;

(b)mentioned documents: where documents that have already been discovered refer to other documents; and

(c)absent documents: documents that one would expect to exist but have not been disclosed.

In support of its application, it has filed evidence from its own project manager and a building surveyor. Some of its evidence relies on its own discovery, to suggest that there are documents in the control of the plaintiffs which they have not disclosed.

[20]   The amended application for discovery made some alternations to the original application, but there are no major changes of substance. The schedule to the application seeks these classes of documents:

Incomplete

1Email correspondence between the apartment owners, tenants, Body Corporate Theta Management and/or repair/maintenance providers relevant to the maintenance and repair of the Empire apartments;

2Invoices for repairs and maintenance to the building elements which are alleged to be defective, in particular during 2016;

3Invoices for the clean-up of the building following fire/sprinkler activations;

4Contracts for the maintenance and repair of the common property;

5Inspection records produced in the course of pre-mid and post-tenancy inspection and/or pre-purchase or pre-settlement inspections;

6Body Corporate Annual General Meeting minutes from 2007, 2012, 2013, 2017, 2018 and Body Corporate Extraordinary General Meeting minutes for February 2008 and September 2010;

7Theta Management annual building management reports for 2007, 2008, 2009, 2012, 2017 and 2018;

8Theta Management monthly non-regular activities reports from March 2017 to date;

9Theta Management regular activities reports (all except January 2011 and February 2014);

10deeds of assignment of the rights and the litigation;

11sale and purchase agreements for units;

Mentioned

12requests for access to apartments or communication as to when access is available for the purpose of inspecting individual apartments and for completing maintenance and repairs;

13maintenance check sheets/job sheets/repair job sheets;

14invoices for cleaning and maintenance of the exterior of the building;

15special disclosure statement on weathertightness defects;

16licence to occupy and Empire Rules and Regulations;

Absent

17invoices for maintenance of individual apartments;

18documents showing the maintenance of sealant anywhere on the exterior of the building.

[21]   In response, the plaintiffs contest the grant of leave under r 7.7. They also say that the documents sought by Downer exceed the plaintiffs' discovery obligations under the order for tailored discovery of October 2016. They say that Downer has not shown that the categories of documents sought meet the adverse documents test and, to the extent that any documents fall within the tailored discovery obligation they meet the adverse documents test. Downer has not given grounds to believe that the plaintiffs' discovery is incomplete. They complain that the categories sought are not sufficiently specified and discovery is said to be disproportionate.

[22]   The principles on which the court orders further discovery under r 8.19 are not in dispute, and I do not need to do any more than refer to the tests set out in Asher J's decision in Abloy New Zealand v Allegion New Zealand Limited,3 and Katz J's decision in Lighter Quay Residents' Society v Waterfront Properties.4

[23]   Relevance is determined by the pleadings. In deciding relevance, the case of the party seeking discovery must be assumed to be true and not that of the party from whom discovery is sought. Generally, the court will not try the case during the discovery application to decide the relevancy of the discovery. That is subject to the qualification that if the pleadings or the circumstances of the case show that the party seeking discovery is pursuing a hopeless issue, the Court is likely to find that discovery is disproportionate or will serve no useful purpose.

[24]   As I have noted, the application for discovery comes out of time. While the first application was filed on the last day for pleadings, it has been replaced by an amended application and affidavits filed after the close of pleadings date. Accordingly, leave is required for this application. The purpose of the close of pleadings date is to ensure that the pleadings and all interlocutory matters have been completed, so that the parties can concentrate on preparing for the hearing. In Elders

3      Assa Abloy New Zealand v Allegion (New Zealand) Limited [2015] NZHC 2760 at [14].

4      Lighter Quay Residents' Society v Waterfront Properties [2017] NZHC 818 at [16].

Pastoral Limited v Marr,5 the Court of Appeal stated that to obtain leave to take steps after the close of pleadings date it is necessary to surmount three formidable hurdles:

(a)showing that doing so would be in the interests of justice;

(b)it will not significantly prejudice other parties; and

(c)will not cause significant delay.

[25]   The cases6 have also recognised that these factors are relevant: the merits of the proposed amended pleading (in a case where an amended pleading was sought); whether irreparable damage will be suffered by the applicant; the timing of the application; the magnitude of and the reasons for the delay; the risk of significant prejudice to other parties; the effect on public resources; the effect on the case; and the impact on case management of the timetable for trial; the importance of the principle that the parties should have every opportunity to ensure that the real controversy goes to trial so as to secure the just determination of the proceeding; and the overarching consideration of the interests of justice. There is no need for a disciplinary approach. The overall objective is that under r 1.2 of the High Court Rules - to secure the just, speedy and inexpensive determination of the proceeding.

[26]   In this case the question of leave is tied up with the merits of the discovery application. Accordingly, I will consider the merits of the discovery application and come back to the leave question.

[27]   The parties have taken differing views as to the plaintiffs' discovery obligations under the terms of the tailored discovery order. The plaintiffs contended for a narrow reading of the discovery order. They pointed out that the adverse documents test applies for relevancy, and Downer could accordingly not ask for documents as giving useful background or as leading to a line of enquiry.   They pointed out that the   main matter in contention went primarily to the defects. This was to address the first

5      Elders Pastoral Limited v Marr (1987) 2 PRNZ 383 (CA) at 385.

6      See, for example, Monster Energy Company v Ox Group Global Pty Ltd [2016] NZHC 2124 at [28].

category of documents, maintenance/repairs and the defects. They said that there was a distinction between defects and damage. While Downer alleged that the damage suffered by the plaintiffs was also caused by the contributory negligence of the plaintiffs, documents going to those contributory negligence issues were matters of damage, not matters of defects, and therefore fell outside the scope of the tailored discovery order.

[28]   I record my understanding of Downer's defence. It says that if there had been a proper regime in place for the maintenance of the building and for carrying out repairs, defects alleged by the plaintiffs would have come to light and timely steps could have been taken to remedy them. Similarly, some of the damage alleged had other causes besides the defects alleged against Downer. One such case is the mould allegation said to arise from the fourth defect. Under that head it has sought disclosure of documents to show that there are other causes of mould within the Empire Apartments besides the fourth defect in the plaintiffs' statement of claim. Downer has never understood that the disclosure obligations are so limited as to exempt the plaintiffs from disclosing documents in their possession which would have a bearing on the defences of contributory negligence, failure to mitigate and failure to safeguard their own interests.

[29]   There are two questions here. The first is one of construction; that is, how should the orders for tailored discovery be interpreted to see whose view is correct? Second, should the terms of the discovery order be reviewed to give Downer disclosure of documents that bear on its defences?

[30]   Mr Robertson reminded me that the defence goes to both maintenance and repairs. He drew the distinction between maintenance and repairs, pointing out that maintenance goes to keeping an asset in sound condition, whereas repairs go to remedying problems with an asset. The statement of defence clearly refers to both maintenance and repairs. He makes the point that a defect cannot be maintained. The maintenance pleading goes to steps taken to ensure that the building is kept in a sound condition.

[31]   The categories of documents to be disclosed under the tailored discovery order need to be read in the light of the parties' pleadings. That is the relevant context. When the order for tailored discovery required the plaintiffs to disclose documents relating to maintenance and repairs, that was with a view to the defences of contributory negligence and failure to mitigate. Admittedly, those defences are confined to the defects, but that means not just the defects but also the damage associated with those defects. It would be a strange construction of the order for tailored discovery to say that on an important issue of failure to maintain and repair relating to contributory negligence, the plaintiffs were exempted from disclosing documents which went to show that damage may have been caused by their own acts and omissions as well as the defects alleged against Downer. Accordingly, a common sense approach is called for. I reject the plaintiffs' confined approach to discovery. Mr Price accepted that there may be documents in existence which have not been disclosed and which may be discoverable under the wider approach.

[32]   In case I am wrong on my interpretation of the order, I deal with this matter also under r 8.17. Admittedly Downer did not refer to r 8.17 in its application. Nevertheless, some expansiveness is required to get to grips with the substance of the discovery issue and to ensure that the case does go to trial with adequate disclosure on both sides. Accordingly, if I am held to be in error in my interpretation of the tailored discovery order, I amend the terms of this tailored discovery order to hold that the obligation to disclose documents relating to maintenance/repairs and defects also relates to damage resulting from the alleged defects and extends to disclosure by the plaintiffs of documents which may go to show that they were also responsible for that damage.

[33]   The plaintiffs misunderstood the scope of documents they should disclose. The correspondence between the parties before the close of pleadings suggests that the parties were talking past each other. Neither seemed to grasp the point made by the other. The hearing today has tended to highlight that.

[34]   There is the difficulty for Downer that it has raised this discovery issue late. Notwithstanding the explanation given for the steps taken since February 2018, Downer appears to have had the opportunity to check the adequacy of the plaintiffs'

discovery earlier. It had already highlighted the inadequacy of discovery on repairs and maintenance matters in its affidavit in support of its application under r 7.48. Accordingly, it was alive to the issue. It should not have waited until March 2019 before checking the plaintiffs' discovery.

[35]   I consider how evidence is likely to be given at trial to prove contributory negligence and failure to take proper mitigation measures by the plaintiffs. As in many building defects cases, these matters tend to be proved by circumstantial evidence. Mr Robertson accepted as much. Downer's experts have gone on site, they have seen the plaintiffs’ documents showing defects and they have had an opportunity to inspect the defects themselves. I take it that with that information Downer will run a case along the lines that any owner of the Empire Apartments would take standard steps to keep the building in a good state of repair and to remedy any defects that came to light on inspections that ought to be conducted at regular periods, and that the damage alleged has been made worse from a failure to take timely steps.

[36]   That may be proved by evidence from Downer's experts without the need to refer to the plaintiffs’ documents on maintenance and repair. Instead, that may throw the onus onto the plaintiffs to show that they did take proper steps to maintain the building, to deal with any defects that came to light, and there was a proper regime in place for inspection, maintenance and repair. In the light of that, it may be in the plaintiffs’ interests to review their discovery. At trial, Downer may submit that, given the sparse documents disclosed by the plaintiffs, steps taken for maintenance and repair were not consistent with the ordinary care and prudence expected of an owner of the Empire Apartments and argue for contributory negligence or failure to mitigate as a result. Faced with that, it behoves the plaintiffs to disclose any documents that they will wish to rely on at trial to show the adequacy of their inspection/maintenance and repair programmes. In other words, failure to disclose may put the plaintiffs at risk.

[37]   Accordingly, I shall make an order for optional discovery by the  plaintiffs.    I will give the plaintiffs the opportunity to review their discovery and make further disclosure of documents. Mr Price submitted against this. Any orders under r 8.17

would require a fresh application and would entail the plaintiffs embarking on a fresh discovery exercise.

[38]   Accordingly, discovery ought to be manageable for the plaintiffs and should not require prolonged searches for documents. The plaintiffs have already collated documents and have made discovery from those documents. That is clear from an affidavit filed in response to Downer's application under r 7.48 – the affidavit of Zhendong Li sworn in October 2017. Accordingly, the plaintiffs should already have access to documents that they have compiled. They will check whether there are further documents within the scope of the defences pleaded by Downer that are discoverable. These documents might typically include: the body corporate's own records, any documents received from Theta Management Limited, any documents received from individual owners, records of any inspections made of the building, when those inspections relate to the particular defects and the damage resulting from those defects, contracts for maintenance insofar as those contracts bear on parts of the building where the defects are located, any invoices and charges incurred and any similar records relating to maintenance and repair work.

[39]   The plaintiffs will have until 29 November 2019 in which to file and serve any further affidavit of documents. I set that date as it gives the plaintiffs reasonable time in which to review their discovery while also giving Downer reasonable time in which to use those documents for its own evidence. There may be hitches and accordingly  I reserve leave to either side to apply for further directions in respect of discovery.

Rule 8.18(2)

[40]   So far I have addressed the matters in terms of rr 8.17 and 8.19. Downer also relied on r 8.18 of the High Court Rules. I refer to that briefly. The rule says:

(1)        Each party against whom a discovery order is made has a continuing obligation to give discovery and offer inspection at all stages of the proceeding, even if that party has filed and served an affidavit of documents that complies with this subpart.

(2)        A party must discover a document if, in the course of complying with an order for tailored discovery, that party becomes aware of a document that is not required to be discovered under the order, but that—

(a)adversely affects that party’s own case; or

(b)adversely affects another party’s case; or

(c)supports another party’s case.

[41]   Downer contended that the plaintiffs have failed to comply with the obligation under r 8.18(2) because Downer itself had provided documents which indicated that there were further documents that were required to be discovered under the tailored discovery order. In support of its application Downer put in evidence its own documents which it had discovered, and it contended that by putting those documents in evidence it had made the plaintiffs aware of documents which were required to be discovered.

[42]   In my view, that gives r 8.18(2) too wide an application. The words, "in the course of complying with an order for further discovery" are a qualification. If the rule means what Downer says, those words could be struck out. In my judgment, the rule is directed at the stage where a party subject to an order for tailored discovery prepares an affidavit of documents and, while carrying out discovery, becomes aware of other documents which fall outside the terms of the tailored discovery order but still satisfy the adverse documents test. Clearly those documents must be disclosed, but it is casting the matter too wide to say that compliance with an order for tailored discovery extends after the affidavit of documents has been filed and served. There are continuing discovery obligations under r 8.18(1), that does not expand the duty under r 8.18(2).

[43]   I am reluctant to take the plaintiffs to task under r 8.18. Instead, I assume that they have misunderstood the scope of the tailored discovery order.

[44]   To the extent that I have given the plaintiffs the opportunity to file a further affidavit of documents, I have granted leave for the discovery application and related affidavits and I similarly grant leave to the plaintiffs to file their updating affidavit of documents.

[45]   I invite counsel to confer on costs. If the parties are not able to reach agreement memoranda should be filed. The party responding should file and serve their memorandum within five (5) working days of the party seeking costs.

……………………………….

Associate Judge R M Bell