Brashier v Brashier

[2018] NZHC 71

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-2981 [2018] NZHC 71

UNDER

Section 174 of the Companies Act 1993

BETWEEN

SANDRA LEIGH BRASHIER and KENNETH ALFRED BOLER (as trustees of the Sandra Brashier Family Trust)

First Plaintiffs

SANDRA LEIGH BRASHIER Second Plaintiff

AND

KEVIN DEREK BRASHIER and CR TRUSTEES LIMITED (as trustees of the Kevin Brashier Family Trust)

First Defendants

Cont…

Hearing:	On the papers
Appearances:	N L Penman-Chambers and R W Belcher for Plaintiffs C Orton for First and Second Defendants
Judgment:	8 February 2018

JUDGMENT OF LANG J

[on costs relating to discovery issues]

This judgment was delivered by me on 8 February 2018 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

BRASHIER v BRASHIER [2018] NZHC 71 [8 February 2018]

KEVIN DEREK BRASHIER Second Defendant

KBL EARTHMOVING CONTRACTORS LIMITED

Third Defendant

BRASHIER PLANT HIRE LIMITED Fourth Defendant

BRASHIER INVESTMENTS LIMITED Fifth Defendant

[1]      On 9 March 2017 Katz J issued a minute in which she recorded directions made in a telephone conference regarding the manner in which the parties to this proceeding were to attend to discovery and inspection of documents.   Those directions were subsequently varied by agreement on several occasions.

[2]      The proceeding was subsequently listed for mention in the Duty Judge List on

13 December 2017 to review compliance with those directions. Prior to that listing of the matter counsel for the plaintiffs filed a memorandum seeking costs against the defendants in the sum of $4343.  These comprised the cost of additional attendances the plaintiffs say they had been required to undertake in order to deal with alleged deficiencies in the manner in which the defendants had attended to discovery and inspection.

[3]      The argument regarding costs could not be heard in the time available on 13

December. For that reason I directed counsel to file further memoranda so that it could be dealt with on the papers. I have now received a memorandum from counsel for the first and second defendants dated 21 December 2017 and a reply memorandum from counsel for the plaintiffs dated 31 January 2018.

[4]      It is clear from the memoranda that the discovery provided by the first and second defendants was deficient in several respects.  The defendants have attempted to remedy these defects but the plaintiffs maintain that deficiencies remain. Examples of the shortcomings in the documents provided by the defendants include:

(a)       The material provided by the defendants omitted to include several hundred documents that had been listed in their list of documents.

(b)      Metadata in respect of numerous documents was missing (c)  Numerous documents were incorrectly named or labelled. (d)     A large number of duplicate documents were provided.

(e)       Several documents had been scanned in an upside-down state and had to be rotated in order to be read.

(f)       Several file folders contained several pages that were out of order.

[5]      Counsel for the defendants submits that some of the attendances for which costs are claimed would have been required in any event to consider the discovery provided by the defendants. He also points out that most of the deficiencies have been remedied by the defendants through their own efforts.

[6]      I accept those submissions as far as they go, but the inescapable conclusion must be that the defendants initially failed to comply with the agreed directions. This resulted in the plaintiffs incurring considerable extra expense because their solicitors were required to identify and request the defendants to rectify the deficiencies.

[7]      I consider the interests of justice require an award of costs to be made to the plaintiffs.  I direct that the defendants are to pay the sum of $3000 to the plaintiffs to

reflect the extra expense to which they have been put.

Lang J