Coote v Murray - [2013] NZHC 91

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CIV-2011-442-000122 [2013] NZHC 91

BETWEEN COLIN HOWARD COOTE First Plaintiff

ANDKATE LARA COOTE Second Plaintiff

ANDKATCOL INVESTMENTS LIMITED Third Plaintiff

ANDJOHN NOEL MURRAY First Defendant

ANDCHRISTOPHER JOHN ROYDS Second Defendant

ANDGENE EDWARD COOPER Third Defendant

ANDDANIEL JOHN WILLIAM HUNT Fourth Defendant

ANDWEST YATES Fifth Defendant

ANDFLETCHER VAUTIER MOORE TRUSTEES LIMITED
Sixth Defendant

Hearing: 28 September 2012
Additional Submissions 4 February 2012 (from Plaintiffs and Third
Defendant)

Appearances: D Kalderimis for Plaintiffs/Respondents
K Harkess for Second and Sixth Defendants/Applicants
A R J Bowers for Third Defendant

Judgment: 7 February 2013

JUDGMENT OF ASSOCIATE JUDGE OSBORNE [as to particular discovery]

COOTE V MURRAY HC NEL CIV-2011-442-000122 [7 February 2013]

Introduction

[1] This case is for trial on 29 April 2013.

[2] On 13 December 2012 I gave judgment on an application by the second and sixth defendants for particular discovery. The discovery and inspection ordered related to documents relevant to a quantum defence pleaded by the second and sixth defendants and the first and fifth defendants respectively.

[3] I have now received from counsel for the plaintiffs and the third defendant memoranda which indicate a disagreement as to the implications of the discovery and inspection orders which I made.

The order

[4] The relevant part of the order made on 13 December 2012 reads:

(a) The plaintiffs are to file and serve by 20 December 2012 a supplementary verified list of additional documents in their control belonging to the following categories:

(i) The plaintiffs’ financial statements, income tax returns, tax summaries and tax return details for the financial years up to and including 31 March 2012 (except to the extent already discovered);

(ii) The correspondence of the plaintiffs and/or their agents with the Inland Revenue Department regarding the plaintiffs’ income tax positions including statements of account and return acknowledgments for the financial years up to and including 31 March 2012 (except to the extent already discovered);

(iii) Documents relating to the plaintiffs’ current and anticipated income on investments which they have owned since 2006 or currently own, including interest, salaries, wages, superannuation schemes or pensions or other income to which the plaintiffs are or are likely to become entitled through such investments;

(iv) Financial statements for any other entities owned or controlled by the plaintiffs which have or are likely in the

future to create taxable income or suffer losses which can be used to off-set the plaintiffs’ income tax liability;

(b) The plaintiffs are to make available for inspection by 24 December
2012 the documents discovered pursuant to (a) above;

(c) Such inspection is to be limited to the legal and any expert accounting advisors retained by the defendants, who shall keep confidential all copies of such documents and information in such documents, save to the extent it is reasonably required to be incorporated in a brief of evidence or referred to in cross- examination.

What has since happened

[5] The plaintiffs filed a third supplementary affidavit listing the plaintiffs’ additional documents…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Coote v Murray

Details

AGLC: Coote v Murray [2013] NZHC 91
Case: [2013] NZHC 91
Decision Date: 7 February 2013

CaseChat Overview and Summary

In the case of Coote v Murray, the plaintiffs, Colin Howard Coote, Kate Lara Coote, and Katcol Investments Limited, initiated proceedings against several defendants, including John Noel Murray, Christopher John Royds, Gene Edward Cooper, Daniel John William Hunt, West Yates, and Fletcher Vautier Moore Trustees Limited. The plaintiffs sought various remedies, including damages and declarations, based on allegations of breaches of fiduciary duty, negligence, and unjust enrichment. The defendants raised a quantum defence, asserting that the plaintiffs' claims were overstated.

The court was tasked with resolving a dispute regarding the scope of a discovery and inspection order. Specifically, the plaintiffs argued that the order, which mandated the disclosure of certain documents, should be limited to the defendants who had pleaded the quantum defence. The plaintiffs contended that the documents were irrelevant to the other defendants and that limiting the disclosure would protect confidentiality and promote the interests of justice. Conversely, the defendants argued that the order applied to all defendants, as it was intended to benefit those who had pleaded the quantum defence, and that the plaintiffs' proposed limitation would be impractical and potentially prejudicial.

The court found that the order did not explicitly limit the rights of discovery and inspection to particular defendants. It noted that the obligation of the discovering party was to disclose documents relevant to any party, and that the confidentiality concerns could be addressed by limiting inspection to relevant legal and accounting advisers. The court also considered the possibility that the third defendant might amend their pleadings to include a quantum defence, which would necessitate the inspection of the documents. The court concluded that the order should apply to all defendants to avoid potential difficulties at trial and to ensure fairness. Consequently, the court declined the plaintiffs' request to limit the discovery and inspection rights to certain defendants and extended the time for serving the relevant documents and inspection materials to all parties.

Orders