Early v Neale HC Christchurch CIV 2009-409-990

[2010] NZHC 1926

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2009-409-000990

BETWEEN  GARRY MARK EARLY JEANETTE MARY EARLY EARLY HOLDINGS LIMITED Plaintiffs

ANDRONALD FREDERICK NEALE CHRISTINE ANNE NEALE DONALD KENNETH BROWN Defendants

Hearing:         29 October 2010

Appearances: G Riach for Plaintiffs

O Paulsen for Defendants

Judgment:      1 November 2010

JUDGMENT OF ASSOCIATE JUDGE DOHERTY (application for further and better discovery)

[1]      An application for further and better discovery by the defendants has been on hand for some time.  The parties have been attempting to negotiate their way to an acceptable position.  The documentation sought is specified, but it comes within the context of a large amount of documentation not conveniently filed or identifiable. This state of affairs has been the subject of some angst between the parties, and the negotiations and pressing of the application have resulted.

[2]      The parties are now at a consent position today, and I have a memorandum of counsel for the defendants which sets out an agreed position.  Mr Riach concurs.

[3]      Therefore,  by consent,  there  are orders  as per paragraph  2  (and its sub- paragraphs) of memorandum of counsel for the defendants of today’s date.

EARLY AND ORS V NEALE AND ORS HC CHCH CIV-2009-409-000990  1 November 2010

[4]      I also reserve leave for the defendants to seek further directions in the event that there is a default in compliance with these orders, or that inspection requires a further application.

[5]      Costs are at issue.  Initially indemnity costs were sought by the defendants. Mr Paulsen today responsibly recognises that costs on that basis would be difficult to attain.  Having read the affidavits in support and opposition to this application, it is clear that the mountain of documentation and its state (as referred to above) has meant that much time and effort has been spent by the plaintiffs in attempting to satisfy their obligations under discovery.  It is difficult to find on the affidavits that there has been any deliberate obstruction.   On that basis, Mr Paulsen accepts that costs on a 2B basis (this proceeding’s costs category) are more appropriate.   Mr Riach finds that hard to resist, and I agree with him.

[6]      There will be costs on this application to the applicant on a 2B basis, together with any disbursements as set by the Registrar.

ASSOCIATE JUDGE DOHERTY

NOTICE REQUIREMENT

The solicitors on the record for the parties are promptly to provide a copy of this

Minute to their clients (r 5.43).