Fox Mortimer Trustee Company v MGH Trah Limited

[2019] NZHC 2359

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-251

[2019] NZHC 2359

BETWEEN

FOX MORTIMER TRUSTEE COMPANY LIMITED
Plaintiff

AND

MGH TRAH LIMITED, LIONEL JOHN HART and JUDEE LOUISE HART as

trustees of the Andre and Joshua Hart Trust Defendants

Hearing:	18 September 2019
Appearances:	D Bigio QC for Plaintiff A Lenard for Defendants
Judgment:	18 September 2019

JUDGMENT OF LANG J

[on interlocutory application seeking discovery orders]

This judgment was delivered by me on 18 September 2019 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

FOX MORTIMER TRUSTEE COMPANY LTD v MGH TRAH LTD [2019] NZHC 2359 [18 September 2019]

[1]    The plaintiff seeks further and better discovery of a variety of documents from the defendants. In large part counsel have been able to reach agreement regarding the material to be provided even though the defendants dispute the relevance of much of this. I am now required to determine whether the defendants should also provide discovery of the following documents:

(a)Plans shown or provided by the defendants to Harrisons Energy Solutions (Harrisons).

(b)Invoices attached to an email sent by Harrisons to the defendants on 14 July 2018.

(c)Plans provided to Harcourts Real Estate when the plaintiffs listed 81 Hartway Grove (formerly Lot 4, 46 Sunnyside Road) for sale in or about October 2017.

Context

[2]    The defendants were originally the owners of a 12.17 hectare property situated at 406 Sunnyside Road, Coatesville. They subdivided that property into four lots, retaining one of these (Lot 1) for their own use. The plaintiff subsequently purchased Lot 2, a two hectare section adjoining Lot 1.

[3]    The present proceeding arises out of misrepresentations allegedly made by the defendants prior to the plaintiff entering into an agreement  to  purchase  Lot  2  on 29 March 2018. The plaintiff contends the defendants represented that Lot 1 would not be subdivided further and that only one dwelling would be built on that property. Furthermore, the dwelling would be built in a natural dip in the land so that it would not be visible from the existing dwelling on Lot 2.

[4]    The plaintiff alleges these representations were false because the defendants had already decided to subdivide Lot 1 and to build an additional dwelling on it. The defendants deny making the representations in question. The plaintiff will therefore need to prove both that the defendants made the representations and that they were false.

The test

[5]    The touchstone for discoverability of documents is whether they are relevant to the issues raised by the proceeding. Relevance may be established where the documents in question may assist the party seeking discovery to prove its case or to disprove the case for the opposing party.

The present application

The documents relating to Harrisons Energy Solutions (Harrisons)

[6]    On 28 March 2018, the day before the parties entered into the agreement for sale and purchase, Mr Hart contacted Harrisons with an enquiry about installing solar energy panels in a house he was intending to build. Notes taken by the person with whom Mr Hart spoke record the following:

Enquiry
Mobile Phone: [phone]

Email: [email protected] Appointment Address: 406 Sunnyside Road City: Coatesville

Post Code: 0792

Install Address: 406 Sunnyside Road City: Coatesville

Post Code 0792

Products: Solar

How many people live in the home? Adults – 7 How many bedrooms in your home – 7

How many stories in your home – 2

Install Timeframe – Plans not gone to Council yet. Are you the home owner? – Yes

Notes:
28 Mar 2018 16:47 by Dereli Todd

Has solar bought off Tristan – 32 panels. Now going to be building on site. Emailing plans thru to you. PLEASE CALL – wants to have a chat – he thinks he wants to go off grid but is keen to hear your take on this – sounds like he could be swayed with battery storage.

[7]    The plaintiff seeks discovery of the plans that Mr Hart subsequently showed or provided to Harrisons. It also seeks discovery of two invoices that Harrisons subsequently emailed to Mr Hart on 14 July 2018.

Plans provided to Harcourts

[8]    The defendants listed another section from the subdivision, Lot 4, for sale with Harcourts in or about October 2017. The plaintiff seeks discovery of any plans the defendants may have provided to Harcourts at the time they listed this property for sale.

Decision

The Harrisons documents

[9]    The defendants contend the discussions with Harrisons related to Lot 4 of the subdivision and not Lot 1. They therefore say the plans have no relevance to the present proceeding.

[10]   If this assertion is correct, I accept that the documents are plainly not relevant. The manner in which the defendants intended to deal with Lot 4 does not assist with their intentions as at March 2018 in relation to Lot 1. This prompted me to indicate during the hearing that the defendants would be required to file a further affidavit confirming that all discussions with Harrisons related to Lot 4 and not Lot 1. Upon reflection, however, Mr Hart’s discussion with Harrisons on 28 March 2018 is so close in time to the parties entering into the agreement for sale and purchase that I consider the plaintiff should be permitted to pursue this avenue of enquiry. Furthermore, the affidavits filed by Mrs Hart in opposition to the present application do not state unequivocally that the discussions with Harrisons related to Lot 4 and not Lot 1.

[11]   I also accept that the plaintiff is not bound to accept the defendants’ assertion on this point for present purposes. The plans shown or provided to Harrisons may match, or be similar to, plans the defendants subsequently developed for a dwelling to be erected on Lot 1. If so, the plaintiff will be entitled to cross-examine the defendants at trial regarding the issue of whether the plans shown to Harrisons related to a dwelling to be built on Lot 1 and not Lot 4. I am therefore satisfied the plans may be relevant and should be discovered if they still exist.

[12]   Although the invoices sent on 14 July 2018 post-date the agreement for sale and purchase they may also shed light on whether the plans related to Lot 1 or Lot 4. Copies of these should therefore be discovered.

[13]   The defendants are therefore to file and serve a further affidavit within 14 days listing the plans and invoices and providing them for inspection if copies still exist. I record that enquiries made by the defendants with Harrisons confirm that Harrisons does not hold a copy.

Plans provided to Harcourts on the sale of Lot 4

[14]   Lot 4 was listed for sale with Harcourts six months prior to the parties entering into the agreement for sale and purchase of Lot 2. Furthermore, Lot 4 is not the subject of the present proceeding so an issue immediately arises as to how the plans could be relevant. These factors prompted me to observe during the hearing that the plans were unlikely to be discoverable. I have now concluded, however, that there is some force in Mr Bigio’s submission that any plans provided to Harcourts in relation to the sale of Lot 4 may assist in determining the veracity of the defendants’ assertion that the discussions with Harrisons related to Lot 4 and not Lot 1.

[15]   If the defendants provided the same plans to Harcourts that they provided to Harrisons it would obviously provide strong support for the defendants’ explanation about their discussions with Harrisons. This would merely prove that the plans are irrelevant to the issues between the parties in this proceeding. If, however, the plans provided to Harcourts were different to the plans provided to Harrisons the plaintiff could argue that the latter related to lot 1 and not Lot 4. I therefore consider the defendants should be required to provide discovery of any plans they may have provided to Harcourts when they listed lot 4 for sale.

[16]   The affidavit to be filed and served within 14 days should also deal with this issue.

Costs

[17]   Given the level of cooperation between the parties in resolving virtually all of the issues raised by the application for discovery my initial impression is that costs should lie where they fall. If either counsel takes a different view I reserve leave for memoranda to be filed and served within the next 14 days. These should not exceed three pages in length.

Lang J

Solicitors:

Lane Neave, Christchurch

Molloy Goodwin Harford, Auckland Counsel:

D Bigio QC, Auckland A Barker QC, Auckland