Choubey v Fivestar Properties Limited

[2020] NZHC 1973

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-694

[2020] NZHC 1973

UNDER

The Companies Act 1993

BETWEEN

RICHA CHOUBEY

First Plaintiff

VINOD RATHORE
Second Plaintiff

AND

FIVESTAR PROPERTIES LIMITED

First Defendant

MUHAMMAD ILYAS BHATTI

Second Defendant

Hearing:	6 August 2020
Appearances:	C T Patterson for the Plaintiffs P Rice for the Defendants
Judgment:	10 August 2020

JUDGMENT OF POWELL J

This judgment was delivered by me on 10 August 2020 at 3.30 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

CHOUBEY v FIVESTAR PROPERTIES LIMITED [2020] NZHC 1973 [10 August 2020]

[1]                  This hearing was set down for a half-day hearing to hear applications by both the plaintiffs and defendants for further and better discovery.

[2]                  By the time submissions were filed, the plaintiffs had conceded the defendants’ application and accept that costs are properly payable on the filing of that application. Orders are made accordingly.

[3]                  Issues with regard to the plaintiffs’ application for further and better discovery against the second defendant, Mr Bhatti, had also narrowed substantially by the time the hearing convened. In particular, for all but one of the further documents identified by the plaintiffs, a number of loan applications made over the years, Mr Bhatti confirmed he had undertaken further investigations and none of those documents are within his power or control and furthermore that he would not have listed the asset at issue in these proceedings in any of those applications.

[4]                  The one exception is the affidavit of assets and liabilities sworn by Mr Bhatti in the course of Relationships (Property) Act proceedings following the breakdown of his marriage around 2004. In respect of this document, Mr Bhatti claims privilege pursuant to s 56(2) of the Evidence Act 2006. That the affidavit in question comes within s 56(2) is not disputed  by  Mr  Patterson  on  behalf  of  the  plaintiffs,  but Mr Patterson nonetheless submitted that I could order the affidavit, or at least relevant parts of it, be produced to the trial Judge so as to enable the trial Judge to check off Mr Bhatti’s answers against what he had deposed in the affidavit. As I discussed with Mr Patterson it is however difficult to see on what basis I could possibly go behind the privilege granted by s 56(2), the effect of which is set out in s 53 of the Act, and Mr Patterson was not able to point me to any authority or other power that would enable me to make the order that he sought.

[5]                  Given this position the plaintiffs’ application for further and better discovery against Mr Bhatti must therefore be dismissed. Mr Rice sought costs on the application, a course of action opposed by Mr Patterson who submitted that costs on the plaintiffs’ application should lie where they fall. This was on the basis that in his submission both parties had achieved a measure of success, the plaintiffs through confirmation that the various loan applications completed by Mr Bhatti cannot now be

located and Mr Bhatti’s confirmation that he would not have listed the asset in issue in these proceedings in any event.

[6]                  Having considered the matters raised by Mr Patterson I conclude that costs should be payable on the plaintiffs’ application. As Mr Rice has observed, the starting point is the presumption that an affidavit of documents is conclusive unless the other party establishes otherwise.1 The burden is therefore on an applicant to make out grounds for belief that a respondent has not discovered documents that “should have been discovered”.2 In any proceedings a party is only required to discover documents upon which the party relies, documents that adversely affect that party’s own case, documents that adversely affect another party’s case or documents that support another party’s case.3 In this case it is difficult to see that the existence of applications for loan documents come into any of these categories, particularly given Mr Bhatti’s confirmation that he would not have referred to the asset in question in any event. Likewise, the affidavit of assets and liabilities as well as being privileged related to a relationship that had broken up in 2004, and it is therefore difficult to see why it would have referred to an asset that only came to be relevant to these proceedings in 2011. As a result, I accept Mr Rice’s submission that costs are properly payable by the plaintiffs on the plaintiffs’ application, on a 2B basis.

Result

[7]                  The plaintiffs’ application for further and better discovery is dismissed. On this application the second defendant is entitled to costs against the plaintiffs on a 2B basis.

[8]                  The defendants’ application for further and better discovery is allowed by consent. The defendants are entitled to costs against the plaintiffs for the filing of the application.

[9]                  In the event there is a dispute with regard to the calculation of the costs leave is reserved for the parties to apply to have those costs determined.

1      Dodson Motorsport Ltd v Logiical Performance Ltd [2018] NZHC 2331, [2018] NZAR 1480.

2      Plumpton v Terry [2016] NZHC 988.

3      High Court Rules 2016, r 8.7.

Powell J