DGL Manufacturing Limited (formerly Chempro NZ Limited) v Simmonds
[2023] NZHC 607
•27 March 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-167
[2023] NZHC 607
BETWEEN DGL MANUFACTURING LIMTED
(formerly CHEMPRO NZ LIMITED) Plaintiff
AND
RODNEY WAYNE SIMMONDS
Defendant
SIMON HENRY
Second Counterclaim Defendant
Hearing: 7 March 2022 Appearances:
G A Cooper for the Plaintiff and Second Counterclaim Defendant R B Hucker and M W Swan for the Defendant/Counterclaim
Plaintiff
Judgment:
27 March 2023
JUDGMENT OF ASSOCIATE JUDGE BRITTAIN
This judgment was delivered by me on 27 March 2023 at 3.00 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors/Counsel:
Hucker & Associates, Auckland Cavell Leitch, Auckland
DGL MANUFACTURING LTD v RODNEY WAYNE SIMMONDS [2023] NZHC 607 [27 March 2023]
Introduction
[1] The substantive claim underlying this proceeding arises from a series of transactions between:
(a)a group of companies associated with the second counterclaim defendant, Simon Henry, including the plaintiff, DGL Manufacturing Ltd, formerly known as Chempro NZ Ltd (the plaintiff and its related companies are collectively referred to as “DGL”); and
(b)a group of companies associated with the defendant, Rodney Simmonds, including Chemsafe Manufacturing Ltd, Chemsafe Group Ltd, DEF Sales Ltd, Chemsafe Logistics Ltd and Let It Grow Ltd. All are either in liquidation or removed from the Companies Register except for Chemsafe Logistics Ltd (these companies are collectively referred to as “Chemsafe”).
[2] The transactions resulted in DGL acquiring the various businesses of Chemsafe, including the business related to the manufacturing and supply of a product known as AdBlue and the business related to the supply of warehousing services to a third party, Redox.
[3] The transactions evolved over several years. The agreements between the parties were documented in several contracts, correspondence between the parties’ advisors, and according to Mr Simmonds, were partly oral. That gives rise to a complicated background, which I need not set out in full. For ease of reference, I refer to the transactions and agreements between the parties as “the arrangements”.
[4] Mr Simmonds’ case is that the businesses were transferred to DGL in three parts:
(a)DGL acquired the AdBlue manufacturing side of the business in September 2016;
(b)DGL next acquired the business of supplying warehousing services to Redox. This included DGL assuming obligations for leased premises required to operate this business, and acquiring fixed assets of Chemsafe in situ on the leased premises; and
(c)DGL lastly acquired the retail side of the AdBlue business following a meeting between Mr Henry and Mr Simmonds on 14 February 2017. Mr Simmonds alleges that various oral agreements were made at that meeting.
[5] DGL sues Mr Simmonds as guarantor of alleged warranties as to the standard and performance of various assets acquired by DGL pursuant to the arrangements. Mr Simmonds has counterclaimed, alleging that DGL failed to perform various obligations owed to Chemsafe, which I discuss further below. The extent of the obligations owed by DGL to Chemsafe is disputed.
[6] The substantive proceeding is set down for trial on 4 September 2023. The close of pleadings date was 31 August 2021. Mr Simmonds now applies for further discovery, and leave is required. DGL opposes a grant of leave and further discovery orders.
Procedural history
[7] In 2018, DGL commenced its proceeding against Mr Simmonds, including an application for summary judgment. Mr Simmonds filed his defence and counterclaim against DGL, dated 27 July 2018, naming Mr Henry as a second counterclaim defendant. The allegations are that DGL failed to comply with its obligations under the arrangements, including a failure to pay some of the Chemsafe creditors; wrongfully retained some of the Chemsafe assets; and collected and retained monies that were due to Chemsafe. Mr Simmonds sought an inquiry as to damages. DGL’s application for summary judgment was withdrawn.
[8] After the first round of discovery, Mr Simmonds filed an amended counterclaim, dated 5 February 2020, which elaborated on the alleged breaches of obligations owed by DGL. The pleading added an alternative cause of action alleging
equitable estoppel, relying on the same facts. In response, DGL sought further particulars and further discovery from Mr Simmonds.
[9] On 25 February 2020, Wylie J conducted a telephone conference and made procedural directions regarding disposition of the further particulars and discovery issues, noting that DGL asserted that Mr Simmonds’ discovery did not include any documents dealing with the losses claimed in his counterclaim.1 At that stage, the proceedings had already been set down for trial commencing on 18 May 2020. The May 2020 fixture was ultimately vacated due to COVID-19.
[10] DGL’s application for further particulars and further discovery from Mr Simmonds was heard by Muir J on 3 August 2020. Muir J noted that the counterclaim did not allege personal losses on the part of Mr Simmonds or seek specific performance.2 Muir J directed that Mr Simmonds file an amended pleading.3 Regarding discovery, his Honour said:4
On the basis of such amendment Mr Hucker accepts that there will be consequential discovery obligations. Any guarantees, correspondence, agreements or records of negotiation with creditors will be discoverable in that context. Likewise, my provisional view is that if proceedings have already been issued against Mr Simmonds by creditors the pleadings will be discoverable. If that provisional assessment is not accepted, Counsel for the plaintiff should at least be notified of the relevant CIV numbers to facilitate any application for disclosure of the Court files.
[11] His Honour directed that Mr Simmonds provide supplementary discovery of all documents in his possession or power relevant to the pending pleading alleging personal loss.5
[12] Mr Simmonds filed a second amended counterclaim, dated 14 September 2020, which remains his current pleading. The amended counterclaim preserves the causes of action from the earlier version that alleges breach of contractual obligations by DGL and estoppel. The relief sought was, however, expanded to include an order for specific performance. In addition, a new cause of action was added which largely
1 Chempro NZ Ltd v Simmonds HC Auckland CIV-2018-404-167, 25 February 2020 at [5].
2 Chempro NZ Ltd v Simmonds HC Auckland CIV-2018-404-167, 3 August 2020 at [8].
3 At [19].
4 At [11].
5 At [19].
duplicates the claim for breach of contractual obligations but focuses on the alleged personal losses incurred by Mr Simmonds.
[13] Mr Simmonds continues to advance his counterclaim on the basis that he is personally entitled to enforce contractual obligations which appear to have been owed by DGL to Chemsafe. The alternative claim for personal losses arising from DGL’s alleged breaches has simply been engrafted onto the existing causes of action.
[14]On 19 November 2020, the proceeding was set down for trial to commence on
7 March 2022. The minute of Associate Judge Gardiner noted that there was outstanding discovery required from the parties. The directions included the usual directions for the exchange of briefs of evidence before trial.
[15] Mr Simmonds subsequently served a brief of evidence from an accounting expert, Shane Hussey, dated 6 December 2021.
[16] The trial set down for 7 March 2022 was again vacated due to COVID-19. DGL and Mr Henry sought further discovery from Mr Simmonds of documents relevant to the counterclaim, based on the brief of evidence of Mr Hussey. On 10 March 2022, Associate Judge Gardiner directed that a formal application was required, including an application for leave.6 The judge noted that it was Mr Simmonds’ position that the documents in question should be in DGL’s possession on the basis that DGL took over the documents and records of Chemsafe on the acquisition of its businesses.7
[17] DGL and Mr Henry served a brief of evidence from an accounting expert, Graeme McGlinn, dated 30 June 2022. It is evident that following a review of that proposed evidence, Mr Simmonds considered that there were documents in DGL’s possession which had not been discovered. Mr Simmonds accordingly sought further discovery from DGL.
6 DGL Manufacturing Ltd v Simmonds HC Auckland, 10 March 2022 at [5].
7 At [4].
[18] Ironically, the documents that Mr Simmonds sought from DGL were of the same nature as the documents previously sought by DGL from Mr Simmonds, being source accounting records that might substantiate the counterclaim.
[19] When the proceedings were called in the Chambers List on 12 August 2022 before Associate Judge Gardiner, the parties agreed that they would each file a supplementary affidavit of documents and provide discovery of any documents that their own accounting expert referred to or relied on in the briefs of evidence.
[20] The proceedings were called in the Chambers List on 23 September 2022, and Associate Judge Gardiner made a further discovery order, requiring the parties to serve further updating affidavits and provide discovery of any documents that the opposing expert referred to or relied on in the briefs of evidence.
[21] The supplementary discovery ordered by Associate Judge Gardiner on 12 August and 23 September 2022 was confined to documents that either accounting expert expressly referred to or relied on in their briefs of evidence. The orders did not extend to other documents that might support the counterclaim allegations, if not referred to in the experts’ briefs. That is a reflection of what was sought by the parties.
[22] On 21 October 2022, the matter was again in the Chambers List before Associate Judge Gardiner. The judge directed that the experts were to confer on 10 December 2022 and file a joint report by 14 February 2023. Unfortunately, that has not occurred.
[23] Mr Simmonds was not satisfied with the further discovery provided by DGL and therefore filed this application for further discovery.
[24] To date, Mr Simmonds has filed seven affidavits of documents and DGL has filed three. Despite that, the scope of the discovery now sought by Mr Simmonds is very broad. It extends to “[a]ll accounting records, systems and ledgers” of Chemsafe obtained by DGL and Mr Henry on, around or after 14 February 2017.
Legal principles
Leave to file an interlocutory application after close of pleadings
[25] A party cannot file an interlocutory application after the close of pleadings date without leave of the Court.8 In order to obtain leave, the applicant must show that granting leave:
(a)is in the interests of justice;
(b)will not significantly prejudice the other parties; and
(c)will not cause significant delay.9
[26] The threshold for meeting this test is high, with each criterion being described as a “formidable” hurdle.10 That necessarily reflects the intention behind the close of pleadings date, which is to ensure that parties can focus their attention on trial preparation free from the interruption and disruption caused by interlocutory applications.11 It follows that when an interlocutory application is filed after the close of pleadings, the closer that filing date is to the start of the trial, the harder it will be for the applicant to gain leave.12
Further discovery
[27] In Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd, Asher J set out the following four-stage approach applicable to an application for further discovery:13
(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?
8 High Court Rules 2016, r 7.7(1).
9 Elders Pastoral Ltd v Marr (1987) 2 PRNZ 383 (CA) at 385.
10 At 385.
11 NZ Iron Sands Holdings Ltd v Toward Industries Ltd [2019] NZHC 2883 at [33].
12 At [33].
13 Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd [2015] NZHC 2760, [2018] NZAR 600 at [14].
(c)Is the discovery sought proportionate?
(d)Weighing and balancing those matters, in the Court’s discretion, is an order appropriate?
The expert evidence
[28] The briefs of evidence of Messrs Hussey and McGlinn have been produced as exhibits in Mr Simmonds’ affidavit filed in support of the current application. Mr Simmonds’ application for further discovery is expressly cross-referenced to Mr McGlinn’s brief of evidence. Counsel for Mr Simmonds and Counsel for DGL both made submissions by reference to the proposed expert evidence of Messrs Hussey and McGlinn. I refer to the briefs of evidence of Messrs Hussey and McGlinn as their “proposed evidence” because the briefs are not evidence until they are read at trial.
[29] Mr Hussey’s proposed evidence on behalf of Mr Simmonds focuses on describing the various transactions comprising the arrangements. He then briefly gives his opinion on the personal losses that Mr Simmonds has suffered as a result of alleged breaches of duties owed by DGL to Chemsafe and Mr Simmonds.
[30] This opinion is based on the hypothetical value of Chemsafe at the conclusion of the arrangements, if DGL had met all its alleged obligations. This assumes that all of the creditors of Chemsafe were paid by DGL and certain other payments were made by DGL to Chemsafe, creating a positive balance sheet. According to Mr Hussey’s proposed evidence, that results in a net assets value of $940,308.00 net of GST, which Mr Simmonds has lost. The amounts of the payments allegedly due to Chemsafe in Mr Hussey’s calculation do not always correspond to the amounts pleaded in the counterclaim, which causes confusion.
[31] Mr McGlinn, in his proposed evidence, focuses on the amounts pleaded in the counterclaim. One central theme of his brief is his opinion that the amounts claimed in the counterclaim are not substantiated by the supporting documents provided during the discovery process. It appears that following a review of Mr McGlinn’s proposed evidence, Mr Simmonds has formed the view that it is now necessary to seek further
discovery from DGL to respond to some of Mr McGlinn’s criticisms that the counterclaimed amounts are unsubstantiated.
[32] The need to substantiate the value of the transactions that ground the counterclaim ought to have been apparent to Mr Simmonds when his counterclaim was first conceived, and certainly following Muir J’s comments in August 2020.
[33] The queries raised by Mr McGlinn in his proposed evidence regarding a lack of source documents to substantiate claims, and the various requests by Mr Simmonds for further discovery that followed, can be traced back to two key documents created by the parties during, or shortly after, the settlement of the arrangements in 2017.
[34] The first document is a spreadsheet prepared by John Laird of DGL in or about early 2017, recording DGL’s assessment of the various debits and credits occurring between DGL and Chemsafe on settlement (the Laird spreadsheet). Mr McGlinn used that document to prepare a table summarising his view of what was to occur on settlement. The settlement included what is colloquially known as a “wash-up” between parties that had traded with each other and with unrelated third parties.
[35] The second document is an email with attachments, dated 14 June 2017, sent from Central Park Legal, solicitors for Chemsafe, to Cavell Leitch, solicitors for DGL (the CPL email). That email asserted, inter alia, that DGL had failed to pay amounts of $426,312.95 and $183,990.82 to Chemsafe.
The issues
[36] In addition to the legal issues that arise from the pleadings, the trial judge will need to deal with issues of fact in respect of some of the line items in the wash-up between DGL and Chemsafe. In broad terms, the issues that I must resolve now are:
(a)Whether the interests of justice require further discovery of source documents relevant to some of those line items?
(b)If so, whether the scope of that discovery can be confined to ensure proportionality and to ensure that the trial date in September 2023 is not put in jeopardy?
The discovery now sought by Mr Simmonds
[37] The categories of documents now sought by Mr Simmonds are appended to this judgment as Schedule A.
Leave to bring the application
[38] Further discovery at this stage of the proceeding will not prejudice the trial provided that the orders are confined to achieve proportionality. Leave is granted to bring the application.
Categories (i), (vii) and (viii)
[39] Categories (i), (vii) and (viii) in essence seek all source accounting documents that underlie all of the debits and credits in the Laird spreadsheet and Mr McGlinns analysis of it. This includes all accounting records, systems and ledgers of Chemsafe.
[40] DGL’s chief operating officer, Ryan Aisher, has deposed that DGL does not hold any of Chemsafe’s accounting software or working hardware.
[41] The requests for discovery in categories (i), (vii) and (viii) are so broad as to amount to a request for standard discovery. Given the extent of the discovery that has already been provided, and the failure to particularise readily ascertainable classes of documents and how they might be relevant, the request comes too late. If such an order was made it would be oppressive. It would also prejudice the trial date for the following reasons:
(a)a considerable amount of time would be required for DGL to locate and discover all source accounting documents for several entities over several years;
(b)there is a significant risk that there would be gaps in the documents able to be located, leading to further discovery issues and applications;
(c)the experts would need time to review the located documents to then justify or change the conclusions in their proposed evidence, and to challenge the positions and opinions of the other expert; and
(d)there is potential that one or more of the parties may wish to serve further briefs of evidence dealing with new material.
[42] At this stage of the litigation, it was incumbent on Mr Simmonds to point to particular categories of documents that might assist in substantiating particular transactions in the wash-up which ought to be disclosed in the interests of justice. On that basis, I turn to consider the particularised requests for further discovery.
Category (ii)
[43] Mr Simmonds alleges that DGL was obliged to pay certain creditors of Chemsafe set out in Schedule B attached to the counterclaim, amounts which total
$449,640.87. In his proposed evidence, Mr McGlinn comments on the supporting accounting records, made available during discovery, stating that those records only “support” creditors of $218,361.08. Consequently, in category (ii) Mr Simmonds now seeks discovery from DGL of all invoices, delivery dockets or documents relevant to the Chemsafe creditors that are now in issue.
[44] If Mr Simmonds advances his case based on the proposed evidence of Mr Hussey, then the precise balance of the Chemsafe creditors will be irrelevant: whatever the balance of the creditors ledger was at the time of settlement, Mr Simmonds’ case is that DGL should have paid it. Whatever the balance was, the outcome would have been a nil balance with the consequences for the calculation of net assets contended for by Mr Hussey. Given the state of Mr Simmonds’ pleading, it is not clear whether Mr Simmonds intends to take a different approach and seek compensation for the value of the unpaid creditors.
[45] Given that uncertainty, limited discovery of documents that will evidence the state of the Chemsafe creditors ledger at the relevant time is reasonable. It remains to be seen whether DGL has possession of those records. Mr Simmonds maintains that all of the source records made their way into DGL’s possession at the time of the settlement of the arrangements. There is also the possibility that the records might reside with Chemsafe’s accountants, or the liquidators of one or more of the Chemsafe companies. DGL can search for what it does have.
[46] The relevant invoices may fall within a broad date range. An arbitrary limit must be set, and 1 January 2017 is a suitable start date.
[47] In addition to the allegedly unpaid invoices from creditors, there is potentially a range of accounting source documents that might be relevant to a full audit of the amount due to each of the creditors, such as statements issued by the creditors and records of payments made by Chemsafe.
[48] There is an issue with proportionality in respect of any search for source documents. The source documents may have accumulated over several years of trading between Chemsafe and each creditor. Given the number of creditors in Schedule B of the counterclaim, if all accounting source records for each creditor were required, this is likely to be a significant number of documents now six or more years old, potentially spread across a number of physical locations. Such a search is onerous and unreasonable at this point in time. It is also unlikely that such a search would produce a complete record which would enable a full audit of the position of each creditor. As I have already noted, such an exercise is unnecessary if Mr Hussey’s approach to calculating the alleged personal loss of Mr Simmonds is adopted.
[49] However, a search for statements issued by each creditor is reasonable and also likely to be of more practical assistance to the accountants. Statements reveal the history of invoicing and payments, which are the critical features of a trading relationship when analysing a creditor’s balance at a given date. Statements from 2017 should be sufficient.
Category (iii)
[50] ANZ bank was one of the Chemsafe creditors, but it is not included in Schedule B of the counterclaim. Category (iii) seeks documents relating to ANZ “or any other lender”.
[51] It is common ground that DGL discharged some obligations owed by Chemsafe to ANZ in order for securities to be released so that unencumbered assets could be acquired by DGL. Mr Simmonds is seeking discovery of “all documents or records” that relate to the ANZ facilities, or facilities provided by any other lender to Chemsafe.
[52] The documents that relate to ANZ are not relevant. There is no evidence of Chemsafe obligations to ANZ that DGL filed to pay. The reference to “any other lender” is too vague. Discovery in respect of Chemsafe creditors should be confined to those creditors listed in Schedule B of the counterclaim.
Categories (iv), (v) and (vi)
[53] There is overlap in categories (iv), (v) and (vi). I will deal with the underlying transactions, which I have also described as line items in the wash-up.
[54] One of the Chemsafe companies, DEF Sales Ltd, supplied goods to DGL. The counterclaim alleges that the unpaid value of the invoices is $426,312.95. In his proposed evidence, Mr McGlinn states that he is unable to conclude whether the goods were received by DGL.
[55] The CPL email confirms that copies of the relevant invoices were sent by Mr Simmonds’ solicitors, Central Park Legal, to DGL’s solicitors, Cavell Leitch, on 14 June 2017. As at that date, Mr Simmonds’ solicitor was plainly in possession of the invoices. There is no explanation from Mr Simmonds as to what has become of them. In any event, it is a simple matter for Cavell Leitch to obtain copies of the invoices received in June 2017 and to discover those.
[56] In addition to the invoices, Mr Simmonds seeks other accounting source documents, such as documents that evidence receipt of the supplies by DGL, or payments made by DGL. It would have been helpful if Mr Simmonds had given evidence confirming the type of source documents that were generated in respect of these transactions.
[57] Mr McGlinn’s proposed evidence puts in issue whether the invoiced supplies were received by DGL. DGL may still hold records relevant to the issue of whether the supplies were ordered and received, or that otherwise evidence the state of the running account in respect of the supplies. All of those documents should be made available.
[58] Mr Simmonds alleges that DGL failed to pay $183,990.82 owed to Chemsafe, for goods supplied from August 2016 to 31 January 2017, as set out in a statement of nine invoices dated 17 May 2017. The statement was included as an attachment to the CPL email. Mr Simmonds seeks discovery of all documents relevant to those invoices, including documents that evidence the receipt of the supplies and any payments made by DGL in respect of those supplies.
[59] DGL may still hold records relevant to the issue of whether the goods were ordered and received, or that otherwise evidence the state of the running account in respect of the supplies. Documents of this nature should be provided. It is not an onerous task for DGL to search to see whether it has possession of such documents.
[60] There is confusion regarding whether there is a third amount claimed by Mr Simmonds for supply of goods by Chemsafe to DGL, totalling $732,792.60. This amount is referenced in the CPL email and commented on by Mr McGlinn in his proposed evidence, but it does not appear in the proposed evidence of Mr Hussey.
[61] In the CPL email, it may be a total of other components of the claim. At this stage, it is not appropriate to make an order in respect of the of $732.972.60 demanded in the CPL email, other than discovery of the “additional summary of the funds” referred to in the CPL email itself. This attachment to the CPL email is not presently
in evidence. This attachment ought to be on Cavell Leitch’s file, as the recipient of the original email, and should be provided.
[62] The CPL email referenced plant and equipment of Chemsafe which Mr Simmonds alleges was left at the Wiri premises used to service Redox, and therefore acquired by DGL. The list of this plant and equipment is in Schedule C attached to the counterclaim.
[63] Mr Simmonds alleges that DGL has not paid for this plant and equipment. Whether or not that is correct depends on an overall analysis of the various debits and credits between DGL and Chemsafe on settlement of the arrangements, which I have described as a wash-up.
[64] In his proposed evidence, Mr McGlinn endeavours to analyse the settlement to ascertain whether this constituted payment for the Wiri assets. Mr McGlinn suggests that the overall position between DGL and Chemsafe might be clarified by conferral between the experts, with input from the parties and access to “the underlying accounting records”. On that basis, Mr Simmonds now seeks discovery of an ill- defined category of documents that somehow relate to Mr McGlinn’s suggestion, and therefore to the analysis of whether the debits and credits involved in the settlement of the arrangements constituted payment for the Wiri assets.
[65] Once again, this request for further discovery is ill-defined and too broad. The discovery requested is unnecessary to resolve the issue of whether the Wiri assets were in effect paid for by the net result of the various debits and credits between the parties on settlement.
[66] Another line item in the wash-up, according to the Laird spreadsheet, is the sum of $35,611.46 claimed by DGL for services supplied to Chemsafe. There appears to be no further information regarding that transaction before the Court at present. The amount of this transaction is modest, which suggests that the range of documents available should not be significant, and all within DGL’s possession as the supplier. These documents should be made available.
Result
[67]The defendant is granted leave to bring the application for further discovery.
[68] The plaintiff and second counterclaim defendant shall provide further discovery of the following classes of documents:
(a)in respect of the creditors of Chemsafe Group Ltd, Chemsafe Manufacturing Ltd, Let it Grow Ltd and DEF Sales Ltd listed in Schedule B attached to the defendant’s second amended statement of defence and counterclaim dated 14 September 2020:
(i)all invoices rendered by the creditors to the debtor companies from 1 January 2017 to 14 February 2017;
(ii)all statements rendered by the creditors to the debtor companies from 1 January 2017 to 14 February 2017;
(b)in respect of the alleged supplies of products by DEF Sales Ltd to DGL which total $426,312.95:
(i)the invoices rendered and any related purchase orders;
(ii)any accounting source documents that record whether the goods and services set out in the invoices were received;
(iii)any documents that record the running account between supplier and customer;
(c)in respect of the alleged supplies of products by Chemsafe to DGL which total $183,990.82:
(i)the invoices rendered and any related purchase orders;
(ii)any accounting source documents that record whether the goods and services set out in the invoices were received;
(iii)any documents that record the running account between supplier and customer;
(d)in respect of the possible further supply of product by Chemsafe to DGL totalling $732,792.60, the “additional summary of the funds” sent as an attachment to an email from Central Park Legal to Cavell Leitch dated 14 June 2017;
(e)all invoices and any documents that record the running account between supplier and customer in respect of the alleged supply of products from DGL to Chemsafe which total $35,611.46;
(f)in these orders, “DGL” includes DGL Manufacturing Ltd and all companies associated with or controlled by the second counterclaim defendant in any way involved in the transactions with Chemsafe;
(g)in these orders, “Chemsafe” is Chemsafe Manufacturing Ltd, Chemsafe Group Ltd, DEF Sales Ltd, Chemsafe Logistics Ltd and Let It Grow Ltd.
[69] The plaintiff and the second counterclaim defendant shall provide the discovery by 28 April 2023 as follows:
(a)by provision of one affidavit of documents;
(b)by assigning a unique document identifier to each document;
(c)the affidavit may list documents in a class with a single group reference, referring to all relevant document identifiers;
(d)the affidavit shall set out the steps taken to search for each class of documents, including in respect of any class for which no documents are found.
[70] The proceedings shall be allocated a case management conference on 2 May 2023 at 4 pm.
[71]Costs are reserved.
Associate Judge Brittain
Schedule A
i.All accounting records, systems and ledgers of Chemsafe Group Limited, Chemsafe Manufacturing Limited, Let It Grow Limited or DEF Sales Limited obtained on, around or after 14 February 2017 by the First and Second Counterclaim Defendants (including but not limited to those referred to in paragraph 12.2 of the Brief of Evidence of Mr McGiinn);
ii.All invoices, delivery dockets or documents evidencing the supply of goods or services by Azelis NZ, Central Southland Freight, Dave Hoskins Carriers, Fuel Installations Limited, Fuel Storage Systems Limited, Kippenburger MFT, Nova Energy, Opzeeland Transport, Sollys, the Breakthrough or Truck Journal Limited (including but not limited to the documentation sought by Mr McGlinn in paragraph 25 of his Brief of Evidence);
iii.All documents or records that demonstrate the facilities or lending that had been made by ANZ or any other lender to Chemsafe Group Limited, Chemsafe Manufacturing Limited, Let It Grow Limited or DEF Sales Limited obtained on, around or after 14 February 2017 by the First and Second Counterclaim Defendants;
iv.Copies of all invoices listed in the statements contained in documents RS.194 and RS.196 or otherwise in the table at paragraph 52 of Mr McGlinn' s B1ief of Evidence and all documents evidencing receipt of the items, goods or services to which the invoices relate, and evidence of any payments made by the First and Second Counterclaim Defendants including but not limited to those referred to in paragraphs 48 to 52 of Mr McGlinn's Brief of Evidence;
v.Copies of all invoices, delivery slips, order forms or communications evidencing the supply of products and stock as identified in paragraph 61 of the Brief of Evidence of Mr McGlinn including but not limited to the supply referred to in Documents RS 192, RS.194, RS.204 and RS.205;
vi.Copies of all documents that are documents which Mr McGlinn their expert maintains were not included in the currently discovered documents including but not limited to the documents Mr McGlinn refers to in paragraph 70.1 to 70.6 of his Brief of Evidence of not having been available to him for his analysis;
vii.Copies of all documents relating to all payments made by the First and Second Counterclaim Defendants as to payments made on behalf of each of Chemsafe Group Limited, Chemsafe Manufacturing Limited, Let It Grow Limited or DEF Sales Limited and all records relating to the claims for the provision of AdBlue product or warehousing services as referred to in paragraph 82 of the Brief of Evidence of Mr McGlinn;
viii.All documents referenced to in paragraph 84 of Mr McGlinn's Brief of Evidence.
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