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Dold v Murphy

Dold v Murphy

Case [2018] NZHC 994 9 May 2018

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-3226 [2018] NZHC 994

BETWEEN
ROGER MURRAY LORIMER DOLD

First Plaintiff

ROGER MURRAY LORIMER DOLD, PENELOPE ANNE DOLD and KEVIN DAVID PITFIELD

Second Plaintiffs

CHRISTOPHER JAMES JACOBS
Third Plaintiff

CARRAJUNG HOLDINGS LIMITED
Fourth Plaintiff

AND

PETER JAMES MURPHY

First Defendant

LUBERON NOMINEES LIMITED
Second Defendant

SIENA CONSULTANTS LIMITED

Third Defendant

Hearing: 22 March 2018

Appearances:

D Heaney QC and K Dillon for the Plaintiffs and Marine Tourism Management Ltd

S O McInally and N W Coyle for the Defendants

Judgment:

9 May 2018

JUDGMENT OF ASSOCIATE JUDGE R M BELL

This judgment was delivered by me on 9 May 2018 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules.
…………………………………
Deputy Registrar

DOLD v MURPHY [2018] NZHC 994 [9 May 2018]

CONTENTS

Paragraph

What the case is about

[5]

The parties’ claims

[16]

The discovery application

[21]

Preliminary matters

[23]

Further discovery by Messrs Dold and Jacobs

[33]

Personal expenses documents (motor vehicles) [33]

Income protection insurance [37]

Reservation system software [40]

Employment of Mr Peter O’Reilly [45]

Documents evidencing strained relationship between Messrs Dold and Jacobs [51]

Documents containing or relating to forecasts, including associated working
papers for Cruise Whitsundays from April 2012 and afterwards [55]

Documents containing comments, records, advice, opinions as to the
decisions by Mr Dold and Mr Jacobs to pay AUD$2million each to Mr Murphy [61]

Documents recording evidence or otherwise relating to Mr Dold’s wish to take more than 30 per cent rollover equity in Experience Australia
Topco Pty Ltd [64]

Income split between Mr Jacobs and his wife, Leigh Efferion,
including income tax returns and bank statements [67]

Documents to be disclosed by Marine Tourism Management Ltd
Financial statements for the years ending 31 May 2011-31 May 2017 [71] Records of directors’ expenses met by Marine Tourism Management Ltd [75] Records of remuneration paid to Mr Jacobs and his wife,
including bank statements and tax returns [76]

Mr Pitfield [78]

Outcome [88]

[1] The defendants apply for the plaintiffs to make further discovery under r 8.19 of the High Court Rules 2016 and for non-party discovery against Marine Tourism Management Limited under r 8.21. The parties were ordered to make standard discovery on 30 May 2017. The plaintiffs have so far provided six affidavits of documents:

(a)Roger Dold, sworn 15 June 2017, 55 pages;

(b)Roger Dold, sworn 26 August 2017, 6 pages;

(c)Christopher Jacobs, sworn 29 August 2017, 9 pages;

(d)Kevin Pitfield, sworn 1 November 2017, 40 pages;

(e)Christopher Jacobs, sworn 1 December 2017, 80 pages; and

(f)Roger Dold, sworn 27 February 2018, 5 pages plus exhibits.

The last three affidavits were filed in response to the defendants’ application of 15 September 2017. The defendants have provided two affidavits of documents dated 3 July and 4 September 2017.

[2] Rule 8.2 of the High Court Rules requires the parties to cooperate on discovery to ensure that discovery and inspection are both proportionate and…

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 Dold v Murphy

Details

AGLC: Dold v Murphy [2018] NZHC 994
Case: [2018] NZHC 994
Decision Date: 9 May 2018

CaseChat Overview and Summary

The High Court of New Zealand was asked to determine whether further discovery of documents was required in a case involving multiple parties who had been involved in businesses in marine tourism. The plaintiffs were seeking to recover AUD$4 million paid to one of the defendants. The defendants sought further discovery of documents from the plaintiffs and from a non-party. The court considered the application for further discovery and whether the defendants had complied with the duty of cooperation under the High Court Rules. The court found that some further discovery was required, but that other claims for discovery were not justified. The court also made a retrospective order under the High Court Rules to allow affidavits of documents to be made by individuals on behalf of groups. Finally, the court indicated that it would invite the parties to confer on costs, but if they could not agree, it would hear argument on the issue.

Orders