Camray Farm Limited (in liquidation) v BL (Nature Sunshine) Trustee Limited as Trustee of the Camray Farm Trust

[2019] NZHC 659

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2016-419-63

[2019] NZHC 659

BETWEEN

CAMRAY FARM LIMITED (IN LIQUIDATION)

Plaintiff

AND

BL (NATURE SUNSHINE) TRUSTEE LIMITED AS TRUSTEE OF THE CAMRAY FARM TRUST

First Defendant

AND

COLLINGWOOD TRUSTEES LIMITED AS TRUSTEE OF THE GORDON MOORE TRUST

Second Defendant

AND

FM CUSTODIANS LIMITED

Third Defendant

Hearing:

On the papers

Counsel:

P V Shackleton for Plaintiff

D Botherway for First Defendant W Pyke for Second Defendant
R A Rosser for Third Defendant

Judgment:

2 April 2019

JUDGMENT OF PAUL DAVISON J

[Re: Costs]

This judgment was delivered by me on 2 April 2019 at 3:00 pm Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:

Meredith Connell, Auckland Botherway Legal, Hamilton Bryce Bluett, Hamilton Holland Beckett, Tauranga

CAMRAY FARM LTD v BL (NATURE SUNSHINE) TRUSTEE LTD NZHC 659 [2 April 2019]

[1]    By the interlocutory application dated 27 February 2019 the plaintiff applied for an order for particular discovery against the second defendant. The application set out detailed particulars of the discovery sought from the second defendant. The discovery sought included legal files held by the second defendant’s lawyers; the bank statements of the second defendant (The Gordon Moore Trust); trust account statements and other financial records including tax returns. The application was supported by an affidavit sworn by Mr Henry Levin.

[2]    In his affidavit Mr Levin set out details of the requests made by the plaintiff to the second defendant for further and better discovery commencing with correspondence in April 2018. It is clear from Mr Levin’s affidavit that the plaintiff’s solicitors made a series of requests of the second defendant’s solicitors during 2018 and although some discovery was forthcoming from the second defendant, it fell well short of what had been requested. The plaintiff thereupon made the interlocutory application dated 27 February 2019 seeking orders directing the second defendant to make further and better discovery.

[3]    The second defendant responded to the application for discovery by consenting to the orders sought with the exception of the application for costs. In his memorandum Mr Pyke explains that while some of the records sought by the plaintiff appear to be peripheral to the plaintiff’s claim, his inquiries have established that some additional records can be discovered. Mr Pyke says that the second defendant has encountered difficulties in providing the requested material as some of the records have been held in the office of a lawyer who does not act for the second defendant and as a result some of the records have been difficult to obtain.

[4]    Mr Pyke submits that costs on the plaintiff’s application should be reserved. He notes that the plaintiff is an insolvent entity. He further notes that the defendants previously applied for an order for security for costs but abandoned that application in consideration of the plaintiff agreeing to attend a mediation.

[5]    Mr Shackleton, for the plaintiff, says that the plaintiff was put to considerable trouble and expense throughout 2018 when it made numerous requests of the second defendant for further and better discovery to be provided informally and it was only

after the plaintiff had become frustrated at the second defendant’s non-compliance with the requests that it proceeded to make the interlocutory application. In the circumstances, says Mr Shackleton, an order for costs on the 2B scale should be awarded.

[6]    I am satisfied by the evidence set out in the affidavit of Mr Henry Levin that the plaintiff made a series of patient and persistent requests of the second defendant for their voluntary production of further discovery material. It was only once the plaintiff made an application to the Court that the second defendant responded consenting to the orders sought. In the circumstances the plaintiff is clearly entitled to costs. The matters raised by Mr Pyke do not displace or outweigh the plaintiff’s entitlement to costs, having succeeded on its interlocutory application.

[7]    Accordingly I make an order for costs in favour of the plaintiff against the second defendant to be calculated on a scale 2B basis.

Paul Davison J