Downey v Quirk - [2023] NZHC 1181

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-000737

[2023] NZHC 1181

IN THE MATTER of the estate of PETER EDWARD CULMER READ

BETWEEN

RICHARD WILLIAM DOWNEY and

TRUST GROUP LIMITED as the trustees of ST JOHN’S TRUST
Plaintiffs

AND

TREVOR KINRED QUIRK as trustee and executor of the estate of PETER EDWARD CULMER READ

Defendant

Hearing: 12 May 2023

Appearances:

R J Lynn for Plaintiffs

H D P van Schreven and J D Kaye for Defendant

Judgment:

16 May 2023

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 16 May 2023 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

DOWNEY v QUIRK [2023] NZHC 1181 [16 May 2023]

[1] This judgment concerns the latest skirmish between these parties over discovery issues.

[2] By way of background, I need only go back as far as my judgment of 15 October 2021 concerning an application by the plaintiffs that the defendant remedy defects in his discovery affidavit, for particular discovery and for inspection of documents.1 As recorded in the judgment, most of the issues on that application were resolved by the making of consent orders. In response to the orders made, the defendant filed two further discovery affidavits dated 29 October 2021 and 15 December 2021.

[3] The plaintiffs consider the defendant continues to fail to comply with his discovery obligations. On 2 September 2022, the plaintiffs filed a further application seeking, amongst other things, compliance with the consent orders in several respects. That application came on for hearing before me on 27 September 2022 but I was advised that it had been resolved and further consent orders would be sought by memorandum. That did not occur and the plaintiffs’ application has been referred back to me for hearing.

[4] When the application was heard on 12 May 2023 it appeared that, again, most matters could be resolved on a cooperative basis. Following the hearing, counsel filed a memorandum seeking further consent orders. However, some issues remain outstanding.

The consent orders

[5] The application identifies the orders from my judgment of 15 October 2021 that are in issue, which are at [19]–[21] of the judgment as follows:

[19] By 16 December 2021, the defendant shall file and serve an amended affidavit of documents in substitution for its affidavit of 17 March 2021 that complies with r 8.15 and the Protocol. As requested by counsel, I also order the affidavit shall list (to the extent that they have not already been listed in accordance with the High Court Rules) the documents that are the subject of the agreements recorded below as well as all relevant documents that the defendant has identified from Mr Read’s computer hard drive, and include editable Excel spreadsheets as provided for in counsels’ agreement.

1 Downey v Quirk [2021] NZHC 2778.

[20]By consent, orders are made that within 10 working days:
…

(b)The defendant is to provide…

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 Downey v Quirk

Details

AGLC: Downey v Quirk [2023] NZHC 1181
Case: [2023] NZHC 1181
Decision Date: 16 May 2023

CaseChat Overview and Summary

Downey v Quirk concerns ongoing discovery issues between the parties, which had previously been the subject of a judgment on 15 October 2021. The plaintiffs allege that the defendant has not complied with the discovery obligations set out in that judgment. The plaintiffs filed an application seeking further orders to remedy these alleged defaults. The defendant, however, claims that he has complied with his obligations, and the plaintiffs' allegations are unfounded. Following a hearing, the parties reached consent orders on many of the issues raised by the application, but several issues remained outstanding.

The court was required to decide whether the defendant had failed to comply with his discovery obligations, and if so, what orders should be made to address any defaults. The court had to consider the specific issues raised by the plaintiffs, such as the disclosure of documents from the deceased's computer hard drive, bank and trust account statements, and further categories of documents. The court also had to consider whether the defendant's conduct warranted an unless order being made under r 7.48(2)(a) of the High Court Rules.

The court found that the defendant had not fully complied with his discovery obligations, but it did not believe that the defendant intended to breach the orders. The court also found that some of the issues raised by the plaintiffs were not adequately put in issue and that some of the documents sought were not relevant or only peripherally relevant. The court made several directions to address the outstanding issues, such as requiring the defendant to file an amended affidavit of documents, provide access to the hard drive data, and contact third parties to request further documents. The court did not make an unless order as it did not consider that the defendant's conduct warranted such an order.

The court made the following directions to address the outstanding issues: the defendant shall file an amended affidavit of documents that complies with the High Court Rules and listing protocols, provide access to the preserved data of the hard drive, contact Dr Rodney Harrison KC to request further documents, and submit further Privacy Act requests on a joint basis. The court also directed that the defendant make enquiries of Samantha Read and provide certain emails and attachments in their native format. In the event of any disagreement as to the implementation of these directions, or the need for further directions relating to discovery issues, leave is reserved to the parties to refer back to the Court by way of memoranda on three days’ notice. The parties agree that costs ought to be reserved.

Orders