Dunajtschik v Garnham - [2024] NZHC 506

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-159

[2024] NZHC 506

BETWEEN
MARK DUNAJTSCHIK

First Plaintiff

DOROTHY MYRTLE SPOTSWOOD
Second Plaintiff

AND

MICHAEL ROBERT GARNHAM

First Defendant

BALLANTYNE BARKER HOLDINGS LIMITED

Second Defendant

MICHAEL BRIAN SPACKMAN in his

capacity as former trustee of the MIRO TRUST

Third Defendant

MGCG TRUSTEES LIMITED in its

capacity as current trustee of the MIRO TRUST

Fourth Defendant

Hearing: 4 March 2024

Appearances:

R L Pinny and D Qiu for Plaintiffs J L Verbiesen for Defendants

Judgment:

12 March 2024

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 12 March 2024 at 1.00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:

DUNAJTSCHIK v GARNHAM [2024] NZHC 506 [12 March 2024]

[1] The first plaintiff (Mr Dunajtschik) brings this proceeding to recover loans. The application before me arises from the defendants’ non-compliance with their discovery obligations. On 15 August 2023, the Court ordered tailored discovery in agreed categories.1 The defendants’ affidavit of documents sworn by the first defendant (Mr Garnham) on 30 November 2023 is incomplete in ways acknowledged by Mr Garhnam. Mr Dunajtschik considers there are also gaps in the discovery provided and, in some respects, a failure to discover any documents in agreed categories.

[2] It is in the face of the defendants’ failure to provide the required discovery, and what he regards as a history of non-compliance with the Court’s directions, that Mr Dunajtschik applies for particular discovery and for an unless order. The application is opposed by the defendants.

[3] The case is set down for trial commencing 15 July 2024, and from Mr Dunajtschik’s perspective there is urgency to resolve the discovery issues and make required amendments to the timetable.

[4]The issues that arise on the application are the following:

(a)Is Mr Dunajtschik’s application premature because the pleadings are not yet finalised and/or because the defendants intend to file a further affidavit of documents?

(b)Have the defendants made a reasonable search for documents within the scope of the discovery order?

(c)Can the defendants withhold discovery in the agreed categories on the basis that the documents are not considered by them to be relevant to the matters in issue?

1 Dunajtschik v Garnham HC Wellington CIV-2022-485-159, 15 August 2023, Associate Judge Skelton (Minute).

(d)If so, has Mr Dunajtschik established reasonable grounds for a belief that the documents sought exist and are relevant to an issue?

(e)Is ordering particular discovery proportionate and appropriate?

(f)If the Court orders particular discovery, should it also make an unless order in terms sought by Mr Dunajtschik?

Some context

The parties

[5] Mr Dunajtschik is a property investor at Wellington. The second plaintiff is his partner and also a property investor.

[6] Mr Garnham is a solicitor at Wellington and also a businessman. He was at relevant times the solicitor for Mr Dunajtschik, and while acting in that capacity requested and took loans from Mr Dunajtschik.

[7] BBHL…

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 Dunajtschik v Garnham

Details

AGLC: Dunajtschik v Garnham [2024] NZHC 506
Case: [2024] NZHC 506
Decision Date: 12 March 2024

CaseChat Overview and Summary

Mark Dunajtschik has brought this proceeding to recover loans made to Michael Garnham, Ballantyne Barker Holdings Limited (BBHL), and the Miro Trust. The defendants have failed to provide discovery in accordance with a tailored discovery order made by the Court. Mr Dunajtschik has applied for particular discovery and an unless order. The defendants oppose the application. The issues before the Court are whether the application is premature, whether the defendants made a reasonable search for documents, whether the defendants can withhold discovery on the basis the documents are not relevant, whether the documents sought are relevant and exist, and whether an unless order is proportionate and appropriate. The Court has found that the application is not premature, that the defendants have not made a reasonable search for documents, that the defendants are required to give discovery of all documents in the agreed categories, and that the documents sought are relevant and exist. The Court has found that ordering particular discovery is proportionate and appropriate, and has made an unless order.

Orders