Carlin Enterprises Limited v Fright Aubrey Limited HC Christchurch CIV 2007-409-2030

[2010] NZHC 2226

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2007-409-002030

BETWEEN  CARLIN ENTERPRISES LIMITED Plaintiff

ANDFRIGHT AUBREY LIMITED First Defendant

ANDGARY RUSSELL SELLARS Second Defendant

ANDNORTHWOOD VIEWS LIMITED Third Party

ANDKEVIN DAVID CARLIN Fourth Party

Hearing:         13 December 2010

Appearances: L Taylor for Plaintiff/Applicant

A Foote for Defendants/Respondents

Judgment:      13 December 2010

ORAL JUDGMENT OF ASSOCIATE JUDGE OSBORNE

as to Non-Party Discovery

[1]      The applicant seeks orders as to non-party discovery by Davis Ogilvie & Partners Limited.

[2]      This is a proceeding in which the trial has commenced and been adjourned. Rule 17.18(2) provides that no interlocutory application may be made in the proceeding after the setting down date without the leave of a Judge.  I am satisfied, having regard to the nature and contents of the application, that it is appropriate that

leave be granted.  I grant such leave.

CARLIN ENTERPRISES LIMITED V FRIGHT AUBREY LIMITED AND ANOR HC CHCH CIV-2007-409-

002030  13 December 2010

[3]      The documents which the applicant seeks to locate and have identified are concept plans for the Northwood Residential Subdivision which is a focus of the proceeding.  Ms  Taylor has filed an affidavit in which she deposes that the concept plans are relevant to the issue of whether reserve contributions were going to be required for subdivision of the undeveloped land and are relevant to the valuation of the undeveloped land, being the valuation at issue in this proceeding.  She has also referred to references identifying that Davis Ogilvie & Partners prepared the concept plans.   Although it appears probable that the defendants would have received the concept plans at some point, their solicitors have indicated that the defendants are not able to locate copies.

[4]      In terms of r 8.26(1) the concept plans are clearly documents which Davis Ogilvie & Partners would have been required to discover had it been a party to the proceeding.

[5]      The  orders  as  to  discovery  and  inspection  which  I  make  follow  those requested by the applicant, which I regard as appropriate.

[6]      The application did not make any suggestion as to how the Court should deal with the expenses of discovery and inspection, pursuant to r 8.27.  The evidence filed discloses that Davis Ogilvie & Partners has not been instructed by its former clients to make the relevant documents available.  In those circumstances it is appropriate that the usual approach applies, namely that Davis Ogilvie & Partners should receive reimbursement for all expenses, including solicitor and client costs.

Orders

[7]      I order:

i)Davis Ogilvie & Partners Limited shall within five working days after receipt of this order file an affidavit stating:

1.  Whether it has, or has had, within its control preliminary subdivision  concept    plans    which    it    prepared     for

Northwood Views Limited in respect of the Northwood Residential Subdivision, prior to 30 April 2002, showing that 484 sections can  be created  from the undeveloped component of 47.50 hectares (“the plans”); and

2.  If the plans have been, but are no longer, in its control, its best  knowledge  and  belief  as  to  when  the  documents ceased to be in its control and who now has control of them.

ii)Davis Ogilvie & Partners Limited shall serve a copy of the affidavit within five working days after service of this order upon the plaintiff and the defendants through their solicitors on record.

iii)If the plans are in Davis Ogilvie & Partners Limited’s control, it is to make those documents available for inspection by the plaintiff  and  the  defendants  within  five working days  after service of this order, at its Christchurch office, in accordance with r 8.33 High Court Rules.

[8]      The costs of this application are fixed on a 2B basis and they, together with the disbursements associated with the application, are to be costs in the cause.  The reasonable costs of Davis Ogilvie & Partners in meeting the requirements of these

orders are to be paid on a solicitor/client basis.

ASSOCIATE JUDGE OSBORNE

NOTICE REQUIREMENT

The solicitors on the record for the parties are promptly to provide a copy of this

Minute to their clients (r 5.43).