Clark v Clark
[2022] NZHC 2665
•14 October 2022
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2021-409-000463
[2022] NZHC 2665
BETWEEN GREGORY BERNARD CLARK
Plaintiff
AND
FELICITY KATE CLARK
Defendant
Hearing: 10 October 2022 Appearances:
G E Slevin for Plaintiff
J Moss and G P Davis for Defendant
Judgment:
14 October 2022
JUDGMENT OF ASSOCIATE JUDGE PAULSEN
This judgment was delivered by me on 14 October 2022 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
CLARK v CLARK [2022] NZHC 2665 [14 October 2022]
[1] The plaintiff (Mr Clark) is the father of the defendant (Felicity). Mr Clark is suing Felicity to recover loan advances said to have been made to Felicity over a period from August 2015 to April 2016. When commencing the claim, Mr Clark applied for summary judgment. His application was dismissed. He now applies for leave to make a second application for summary judgment, which Felicity opposes.
[2] For her part, Felicity is applying for particular discovery, which Mr Clark opposes.
[3]This judgment therefore deals with the applications:
(a)by Mr Clark for leave to make a second application for summary judgment pursuant to r 12.4(2AA) High Court Rules 2016; and
(b)by Felicity for particular discovery of several categories of documents pursuant to r 8.19 of the High Court Rules.
[4]The issues in relation to Mr Clark’s application are:
(a)whether there are special circumstances justifying the grant of leave to bring a second summary judgment application; and
(b)whether it is appropriate to grant leave in the exercise of the Court’s discretion.
[5] In relation to Felicity’s application, the primary issue is whether the documents she seeks are relevant to any matter in issue.
Background
[6] Between August 2015 and April 2016, Mr Clark and Felicity entered into several written loan agreements in respect of advances that were made to Felicity at her request. The advances were to enable Felicity to purchase and repair earthquake damaged properties at Woodham Road and Bickerton Street and to advance her career
as a property investor. Notwithstanding the terms of the loan agreements, Felicity never paid any interest on the advances, nor did she repay the principal amounts.
[7] When Mr Clark formally demanded repayment of the advances, Felicity advised that she would not be repaying them. She says the advances were gifts by way of an early inheritance and that her parents were motivated to make the gifts because of mistreatment she had suffered growing up. The loan agreements were prepared and signed, she asserts, only to protect her in the event that she separated from her partner and he made a claim on the properties. She also says several loan agreements were entered into under duress.
[8] In October 2021, Mr Clark commenced this proceeding. The claim, as initially filed, relied only upon the loan agreements. Following a hearing before me, I dismissed Mr Clark’s application for summary judgment as, while I considered Felicity’s position was weak, I could not conclude that she did not have an arguable defence to the claim based on the loan agreements or rule out her defence that the advances were gifts.1
[9] On 27 April 2022, the parties were directed to provide standard discovery, and (subject to Felicity’s application for particular discovery) this has been completed. Directions were also made setting the case down for trial and making pre-trial directions, including in relation to the exchange of evidence.
[10] In the course of discovery, Mr Clark located several additional loan agreements signed by Felicity. He has amended his statement of claim and seeks to recover an additional advance, and has included an alternative cause of action that the advances to Felicity are recoverable as money had and received.
[11] Mr Clark filed his application for leave to make a second application for summary judgment on 15 July 2022. Since then the close of pleadings date has passed. The case is set down for trial in February 2023 (as a back-up) or on 1 May 2023 (as a firm date). The timetabling directions for the exchange of evidence have not, however,
1 Clark v Clark [2022] NZHC 786 at [51]-[52].
been complied with. Mr Clark has also applied to file a further amended statement of claim, which is a matter to which I shall return.
A second summary judgment application
The law
[12]Rule 12.4(2AA) High Court Rules provides:
The court may grant leave in respect of a second or subsequent application for summary judgment in the same proceeding if special circumstances exist.
[13] Rule 12.4(2AA) is a relatively new provision, having taken effect from 24 July 2020. The only decision to which counsel could refer me that deals specifically with this rule is a decision of Lang J in Hellaby Resource Services Ltd v Body Corporate 197281.2 That was a claim for the cost of services performed under construction contracts pursuant to which TBS Remcom Ltd carried out work on an apartment complex administered by the Body Corporate. When the proceeding was commenced, Hellaby was named as plaintiff on the basis that TBS had assigned its right to recover the debt to it. Hellaby applied for summary judgment, but the application was dismissed because TBS had not obtained the Body Corporate’s prior consent to the assignment as it was required to do. Hellaby then joined TBS as a second plaintiff, and TBS made an application for leave to apply for summary judgment under r 12.4(2AA).
[14]Lang J noted that the focus under r 12.4(2AA) is:3
… on the reason why the second or subsequent application for summary judgment has been filed. This will generally inform the decision as to whether special circumstances exist to justify the likely cost and delay of permitting a second application for summary judgment to proceed.
[15] He noted that guidance could be found from the requirement for leave in r 7.52 preventing unmeritorious duplicate interlocutory applications and a decision of
2 Hellaby Resource Services Ltd v Body Corporate 197281 [2020] NZHC 2131.
3 At [12].
Associate Judge Bell in Commissioner of Inland Revenue v Patel,4 where the Associate Judge observed the words “special circumstances” are: 5
… wide, comprehensive and flexible words indicating something abnormal, uncommon or out of the ordinary but something less than extraordinary or unique.
[16]In relation to this, Lang J said:6
I endorse these sentiments but caution against any attempt to provide prescriptive circumstances in which the new rule is to apply. In short, the courts should not encourage litigants to pursue successive unmeritorious applications for summary judgment. It is well recognised, however, that the summary judgment procedure is designed to enable the speedy resolution of meritorious claims where the plaintiff can satisfy the Court that there is no genuinely arguable defence.7 The need for special circumstances to be present before a second application for summary judgment may be advanced enables the Court to subject such applications to scrutiny before they are permitted to proceed. Where such circumstances exist the courts should not deny a plaintiff with a meritorious claim the opportunity to obtain summary judgment and thereby avoid the delay and expense of the interlocutory process and a full trial.
[17] On the facts of Hellaby, Lang J granted leave to bring a second application for summary judgment because TBS had not become involved in the proceeding until the Court had determined the assignment of the debt to Hellaby was ineffective. Lang J considered that amounted to a special circumstance for the purposes of the rule. Other factors that led him to conclude it was appropriate that TBS should be permitted to apply for summary judgment included:
(a)there was no undue delay in pursuing the second application for summary judgment;8
(b)it was not a case where Hellaby had chosen to advance one argument in the first application for summary judgment in the knowledge that another argument was open to TBS;9
4 Commissioner of Inland Revenue v Patel [2013] NZHC 477.
5 At [8], citing Kidd v van Heeren (1997) 11 PRNZ 422 (CA) at 424.
6 At [15].
7 Doyle’s Trading Co Ltd v Westend Services Ltd [1989] 1 NZLR 38 (CA).
8 At [17]-[20].
9 At [21]-[22].
(c)while the entry of summary judgment would not end the entire dispute between the parties (because the Body Corporate had made a counterclaim), it would free the Court to concentrate on the counterclaim and would thus be advantageous;10 and
(d)the second summary judgment application had considerable prospects of success.11
Special circumstances
[18] Mr Clark advances five matters that he argues amount to special circumstances justifying the grant of leave to bring a second summary judgment application.
[19] The first matter is that he has amended his claim by adding the cause of action in money had and received, and the Court has not had an opportunity to consider this new cause of action. This cause of action was available to Mr Clark at the time he made his first application for summary judgment. Felicity had made it clear she did not consider the advances were loans. Despite that, Mr Clark chose to advance his claim in reliance on the loan agreements alone. The fact he did not plead alternative causes of action cannot amount to special circumstances. Rule 12.4(2AA) should not be applied to allow repeat attempts at gaining summary judgment so that parties may repair errors of approach. I understood Mr Slevin to accept that to be the case.
[20] Likewise, I understood Mr Slevin to accept the second matter advanced was also not a special circumstance. That was that Mr Clark had recently located emails and further loan agreements which were not before the Court when hearing the first summary judgment application. Those documents were always in Mr Clark’s possession, and he cannot rely upon a failure to undertake a proper search before commencing proceedings as a special circumstance justifying a second attempt at obtaining summary judgment.
[21] The third matter is related to the second. It is said that as a result of locating further emails and loan agreements, a substantial evidential deficit identified at the
10 At [23]-[24].
11 At [25]-[29].
prior summary judgment hearing has been addressed. While this may be relevant to the merits of a second summary judgment application (which I address below) it is not a special circumstance given the documents were always in Mr Clark’s possession and should have been provided to his solicitors at the outset.
[22] The fourth matter is that there has been a change in “fundamental elements” of Felicity’s defence. There are two matters relied upon. One relates to whether she planned to live in the Woodham Road property that was purchased with advances from Mr Clark. The second concerns Felicity’s pleading in her second amended statement of claim that she had asked her parents to “lend her money”. I do not consider that there is merit in this submission. Despite criticisms that may be made concerning the clarity of Felicity’s evidence and her pleadings, her fundamental position remains that the loan agreements were not intended to be binding and the advances were gifts.
[23] The final matter is Mr Clark’s argument that Felicity is abusing the Court’s processes. It is said that she has, in correspondence, attempted to blackmail her parents by threatening to reveal family secrets if the claim is not withdrawn or settled on terms that she has proposed. Mr Slevin submits that the Court should not be required to hear scandalous allegations in a public hearing unless they can afford Felicity with a defence, which he considers they cannot in this case.
[24] The correspondence that is relied upon in support of this submission pre-dates the first summary judgment application and cannot, therefore, in my view, amount to a special circumstance justifying a second summary judgment application. Further, while Felicity’s correspondence is inappropriate, the family secrets she threatens to reveal are the same matters that she relies upon in support of her defence that the advances were not loans. They are said to provide relevant context explaining why her parents would gift substantial sums of money to her. This, too, does not amount to a special circumstance.
[25] Mr Clark has not satisfied me that special circumstances exist justifying a grant of leave in terms of r 12.4(2AA), and the application must therefore fail.
The discretion
[26] There are other reasons why, in the exercise of my discretion, I would not grant leave in this case.
[27] First, while I accept that Mr Clark’s claim is strong and the discovery process has revealed further documents to support it, there remain factual disputes between the parties which the Court may feel it cannot determine on a second summary judgment application. By way of example, Mr Slevin focused on Felicity’s contention that the loan agreements were effectively a sham to protect her from a claim by her partner. As I understand it, if that contention is not accepted, Felicity’s defence falls away as she offers no other explanation for the existence of written loan agreements. Developing the argument, Mr Slevin submits that Felicity has given no evidence that she ever discussed with Mr Clark or anyone else the possibility of entering into loan agreements to disguise a series of substantial gifts as loans. There is force in the argument, but I note that Felicity does say in her affidavits that the reason the advances were documented as loans was to protect her from a claim and the inference to be taken from her evidence is that it was a matter discussed with her parents.
[28] Further, and most importantly, I consider it is not in the parties’ interests to allow the making of a second summary judgment application at this late stage of the proceeding, when this is likely to simply prolong matters and cause further expense.
[29] In Waihopai Valley Vineyard Ltd v Savvy Vineyards 3550 Ltd, the Court was considering, amongst other things, an application for leave to make a second application for summary judgment. Andrews J noted that leave should not be given to apply for summary judgement if it will not avoid prolonged proceedings.12 She refused leave to make a second summary judgment application because:
(a)the issues in the case before her were strongly disputed and should not be resolved without recourse to the full range of evidence and cross- examination at trial;
12 Waihopai Valley Vineyard Ltd v Savvy Vineyards 3550 Ltd [2015] NZHC 592 at [35].
(b)she did not accept that granting leave to apply for summary judgment would save time and expense;
(c)the case had already been set down for trial; and
(d)she was not persuaded as to the merits of the summary judgment application.
[30] This is a similar case. Here, the claim has been set down for trial. It will be heard during February or May 2023. If Mr Clark was granted leave to make a second summary judgment application, he could only be successful if the Court were to make findings on disputed facts. There is a significant risk that such a decision would, given the relationship between the parties, be subject to an appeal. In that circumstance, the parties would have lost the opportunity for a full trial no later than May 2023.
[31] Further, if Mr Clark’s second application was unsuccessful, valuable weeks that should have been used by the parties focusing on trial preparation will have been wasted. I am not confident that by the stage a decision is made on a second summary judgment application, that the case could be made ready for trial by May 2023. I say this having regard to the fact that the parties have yet to exchange evidence (despite directions that they should), the intervention of the Christmas vacation period, and the likelihood, identified by Mr Slevin, of the need for pre-trial directions in relation to the relevance and admissibility of evidence.
[32] An issue of fairness also arises. Insofar as Mr Clark believes that the “substantial evidential deficit” prevented summary judgment being entered on the first application has now been addressed, that is substantially because he has amended his pleadings and identified documents that were always in his possession but not provided to his solicitors. Felicity has been put to the cost of successfully opposing the first summary judgment application. I understand that the cost of defending this claim is a hardship for her. I do not consider it reasonable that she be put to the further cost of defending a second application so close to trial when that could have been avoided.
Conclusion
[33] For the reasons above, Mr Clark’s application for leave to file a second summary judgment application will be dismissed.
The application for further discovery
The documents in issue
[34] Felicity has made an application for particular discovery. The scope of the application was reduced at the hearing, and the categories of documents that are now in issue are limited to:
(a)attachments to 13 emails listed in Mr Clark’s affidavits of documents;
(b)certain documents relating to inheritances, endowments and investments received by Mr and Mrs Clark; and
(c)any offers received by the executors of the estate of Mollie Clark relating to the properties at 201, 205 and 205A Wordsworth Street and 203 and 203A Waltham Road, Sydenham, Christchurch 8023.
Relevant principles
[35] The parties were ordered to provide standard discovery. Rule 8.7 of the High Court Rules provides:
Standard discovery requires each party to disclose the documents that are or have been in that party’s control and that are-
(a)documents on which the party relies; or
(b)documents that adversely affect that party’s own case; or
(c)documents that adversely affect another party’s case; or
(d)documents that support another party’s case.
[36] Standard discovery only requires disclosure of documents of actual and direct relevance.13 The authors of Sim’s Court Practice state:14
In a contested application for standard discovery, the court must decide whether amongst other criteria the document adversely affects a party’s case (or, conversely, positively affects the other party’s case).
[37] Relevance is assessed having regard to the pleadings. As such, the pleadings set the outer limits of what must be disclosed. Documents that do not relate to an issue arising on the pleadings, that are no more than background, or that relate to a non- substantive aspect of the case, are not relevant and therefore not discoverable.15
[38] Mr Davis reminded me, and I accept, that relevance can, however, be broader than the test for admissibility under s 7 of the Evidence Act 2006.16
[39] Felicity’s application is made under r 8.19 of the High Court Rules, which provides:
8.19Order for particular discovery against party after proceeding commenced
If at any stage of the proceeding it appears to a Judge, from evidence or from the nature or circumstances of the case or from any document filed in the proceeding, that there are grounds for believing that a party has not discovered 1 or more documents or a group of documents that should have been discovered, the Judge may order that party
(a)to file an affidavit stating
(i) whether the documents are or have been in the party’s control; and
(ii) if they have been but are no longer in the party’s control, the party’s best knowledge and belief as to when the documents ceased to be in the party’s control and who now has control of them; and
(b)to serve the affidavit on the other party or parties; and
(c)if the documents are in the person’s control, to make those documents available for inspection, in accordance with rule 8.27, to the other party or parties.
13 Pyne Gould Corporation Ltd v Bath Street Capital Ltd [2020] NZHC 1247 at [13].
14 Matthew Casey (ed) Sim’s Court Practice (online ed, LexisNexis) at [HCR8.7.1]
15 RHH Ltd v Anderson [2018] NZHC 2032 at [12]; and Bei v Wang [2019] NZHC 2860 at [9].
16 Attorney-General v Institution of Professional Engineers New Zealand Inc [2018] NZHC 74, [2018] NZAR 275 at [28].
[40] The key issue in applications under r 8.19 is whether there are grounds for believing a party has not discovered documents that should have been discovered. On applications under r 8.19, the Court generally adopts the four-stage approach as outlined in Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd:17
(a)Are the documents sought relevant, and if so how important will they be?
(b)Are there grounds for belief that the documents sought exist? This will often be a matter of inference. How strong is that evidence?
(c)Is discovery proportionate, assessing proportionality in accordance with Part 1 of the Discovery Checklist in the High Court Rules?
(d)Weighing and balancing these matters, in the Court’s discretion applying r 8.19, is an order appropriate?
Attachments
[41] There are emails listed in Mr Clark’s affidavit of documents for which Felicity says attachments have not been disclosed. There are now just 13 of these emails that are in issue. Felicity says the emails themselves are “clearly relevant”, and so she expects the attachments are also.
[42] Mr Davis submits that an attachment to an email will almost certainly be discoverable if the email itself is discoverable. He says the fact that the emails in question are listed in Mr Clark’s affidavit of documents is sufficient to establish the attachments are relevant and the attachments are in Mr Clark’s control. He submits there can be no genuine concerns around proportionality given the attachments are few in number and in Mr Clark’s lawyer’s possession.
[43] Mr Clark’s position is that he has discovered all attachments that are relevant, and that the attachments in question have either been discovered or are not relevant to any matter in issue. In some cases, the attachments are considered both irrelevant and confidential. Mr Clark says the nature of the attachments is obvious from the header
17 Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd [2015] NZHC 2760, [2018] NZAR 600 at [14].
information on the emails, but rather than produce many irrelevant documents he has provided, as an exhibit to his affidavit, a table describing each of the attachments or where the attachment has otherwise been disclosed in his list of documents. I should note that the table relates to a greater number of emails than are now in issue.
[44] I note the listing and exchange protocol in pt 2 of sch 9 of the High Court Rules deals with attachments. It provides at cl 8(3) that all attachments should be listed separately. An attachment is regarded as any document that is attached to or embedded within another document. The document that attaches another document will be regarded as the parent document, and the attachments should be listed following the parent document and take the next document ID.
[45] The first stage in the approach outlined in Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd requires the Court to determine the relevance of documents sought. The Court will not order a party to discover documents that are plainly irrelevant. In the usual case, the relevance of an attachment to a document disclosed in discovery can be assumed. However, that will not always be the case, and, here, it is quite obvious that some of the emails and the attachments to them are not relevant to any matter in issue.
[46]I have considered each email and the submissions made in respect of it. I find:
(a)The emails and attachments concerning Felicity’s passport and timeshare weeks are irrelevant. They are documents GBC079, GBC091, GBC095, and GBC121.
(b)Document GBC092 concerns an offer by Mr Williamson to purchase a property at Southwark Street. The offer is an attachment to the email. While Mr Williamson features in the evidence, that was in relation to the purchase of other properties. The attachment is not relevant.
(c)Documents GBC108 and GBC115 are emails that Felicity was sent by her parents but she no longer has access to them. They appear to relate
to the Waltham Road property, which is in issue. The attachments should be disclosed.
(d)The documents GBC124, GBC136, GBC165 and GBC168 relate to the administration of Mr Clark’s mother’s estate and the liquidation of Molbern Holdings Ltd. I understand Felicity considers the affairs of the estate and the company relevant to Mr and Mrs Clark’s financial position. For reasons I shall come to, I do not consider their financial position is relevant.
(e)Document GBC142 attaches a copy of a loan agreement. It is to be assumed it was a loan agreement prepared for Felicity to sign. It is relevant, and the attachment should be disclosed.
(f)Document GBC264 is a letter that is relevant to Felicity’s contention she was subject to mistreatment and that this provided motivation for her parents to gift her money. I am advised by Mr Slevin that the letter is separately listed in Mr Clark’s affidavit of documents as GBC263, but I note that is dated a day earlier than the email. To avoid any suggestion that document GBC263 and the attachment to GBC264 are different, the attachment should be disclosed.
Documents relating to Mr and Mrs Clark’s assets and liabilities
[47] Felicity argues Mr and Mrs Clark’s financial position is in issue. It is submitted that this has been pleaded as an important basis for Felicity’s case that the advances were gifts. The argument advanced, as I understand it, is that Mr and Mrs Clark’s financial position was such that they could afford to gift the advances to Felicity.
[48]The information that Felicity is seeking concerns:
(a)two inheritances Mrs Clark received in 2005;
(b)an endowment Mr Clark received from his mother’s late husband in 2015; and
(c)an investment in Maui Capital Aqua.
[49] As far as the pleadings are concerned, the reference to Mr and Mrs Clark’s financial position appears at [16] of Felicity’s statement of defence of 7 July 2022 as follows:
… Her parents had significant funds as a result of Greg receiving an inheritance of approximately $1 million from his mother in or about 2014, previous inheritances to both parents, savings of an unknown amount from amongst other things, the sale of investment property in Australia, as well as an unencumbered large family home in Westmorland, Christchurch, and significant Kiwisaver accounts and well placed to provide the funds requested by Felicity.
[50] In their joint affidavit, Mr and Mrs Clark depose they have disclosed, with supporting evidence, their full financial position at the time the advances were made to Felicity. They do not see how details of inheritances received at other times can be relevant.
[51] I do not consider Mr and Mrs Clark’s financial position is relevant to any issue arising in this proceeding. It cannot possibly be the case that an inference would be drawn that Mr and Mrs Clark intended to gift money to Felicity simply because they could afford to do so. In any event, if I was wrong about that, it could only be Mr and Mrs Clark’s financial position at the time the advances were made that is relevant. They have provided disclosure concerning their financial position at that time.
Offers received by the executors of the estate of Mollie Clark relating to the properties at 201, 205 and 205A Wordsworth Street, and 203 and 203A Waltham Road
[52] While the scope of documents sought in this category was originally much broader, Mr Davis confirmed that Felicity would be happy to receive just offers received on these properties.
[53] It is Felicity’s contention that as an executor of his mother’s estate, Mr Clark allowed her friend, Mr Williamson, to purchase these properties on her behalf as an “olive branch” for past mistreatment. She says, because of this she later reached out to her parents for some money. She also says she is aware of other offers for the
properties which the executors did not accept in favour of Mr Williamson’s offer, including one made through Steve Brooks. Mr Brooks confirmed this in an email to Felicity, but will not provide her with the offer. Felicity believes that Mr Clark must know about this and other offers.
[54] Mr Clark says that if there were other offers, he is not aware of them. Mr Slevin has made enquiries on Mr Clark’s behalf of the person who is likely to hold records of such offers if they were made (the accountant who was dealing with the sale of the properties). There is no record of other offers. There is an email from the accountant attached to Mr Clark’s affidavit confirming this.
[55] There is nothing in Felicity’s statement of defence about other offers on these properties. There is in fact no connection between the sale of the properties and the later advances made to Felicity. There is also nothing to suggest a connection between the sale of the properties and Felicity’s allegations of mistreatment. All that Felicity can say is that she “saw” Mr Clark’s willingness to sell the properties to her as an olive branch. Whether that is the case or not, the fact Mr Clark was prepared sell the properties to Felicity says nothing at all about whether the later advances were loans or gifts.
[56] It appears the reason Felicity seeks the documents is because she considers that it will be relevant to Mr Clark’s credibility. I do not see how that can be so, particularly in light of the accountant’s advice that there is no record of other offers. In any event, the sale of the properties is at best nothing more than background to the making of the advances. The Court will not normally order discovery of such material, and certainly not if the only purpose is to impeach a witness’s credit.18
Conclusion
[57] Mr Clark will be directed to produce the attachments to the documents GBC108, GBC115, GBC142 and GBC264. In all other respects, Felicity’s application for particular discovery will be dismissed.
18 Andrew Beck and others McGechan on Procedure (looseleaf ed, Thomson Reuters) at [HR8.7.01].
The future conduct of the proceeding
[58] It is important that the parties now get on with preparation for trial. Counsel are to confer immediately in relation to a suitable timetable. In addition to the usual range of pre-trial directions, there are several issues they will need to consider.
[59] First, a decision will need to be made as to whether it is realistic to maintain a back-up fixture in February 2023.
[60] Next, Mr Slevin has indicated that an amended statement of claim is to be filed. Mr Davis opposed that in the context of Mr Clark’s leave application, but now that that will not be granted, it appears to me there is no prejudice to Felicity in allowing an amendment to the pleadings at this juncture. Counsel will need to confer over this and, if they cannot agree, I will decide the matter.
[61] I note from the joint affidavit of Mr and Mrs Clark of 15 July 2022, that they say they have always acted jointly in relation to the advances to Felicity. Counsel should consider if it would be prudent to join Mrs Clark as a party.
Result
[62] Mr Clark’s application for leave to make a second application for summary judgment is dismissed.
[63] In respect of Felicity’s application for particular discovery, Mr Clark is directed to produce the attachments to the documents GBC108, GBC115, GBC142 and GBC264 in his list of documents for Felicity’s inspection within seven days. In all other respects Felicity’s application is dismissed.
[64] Counsel are to confer and, by no later than 26 October 2022, submit a preferably joint memorandum of the proposed directions to take the case to trial. In the event that they cannot agree on any matters, this is to be identified in the memorandum. I would then propose to make further timetabling directions on the papers.
[65] As far as costs are concerned, each party has been either wholly or substantially unsuccessful in the applications they have made. In those circumstances my preliminary view is that costs should lie where they fall. However, I have not heard from counsel so that is not a concluded view. Counsel shall confer and if there is no agreement on costs, they may file memoranda of no more than five pages on costs within 21 days.
O G Paulsen Associate Judge
Solicitors:
Maciaszek Brown Law (P Maciaszek), Christchurch Shaun Cottrell Law (S T Cottrell), Christchurch
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