Frickleton v Stag Trading Limited

[2015] NZHC 1770

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2014-485-710 [2015] NZHC 1770

BETWEEN

CARL WILLIAM FRICKLETON

Plaintiff

AND

STAG TRADING LIMITED First Defendant

MARK FRICKLETON Second Defendant

Hearing:	29 July 2015
Counsel:	J R Grace for the Plaintiff M Freeman for the Defendant
Judgment:	29 July 2015

ORAL JUDGMENT OF ASSOCIATE JUDGE SMITH

[1]      The  plaintiff  filed  an  interlocutory  application  on  12  May 2015  seeking further discovery of numerous categories of documents.  After the application was filed, there have been further amended pleadings, and Mr Mark Frickleton has been added as a second defendant.

[2]      There has also been ongoing additional discovery provided by the defendants, and a number of the original disputed discovery categories have now been resolved.

[3]      The outstanding items in respect of which the plaintiff still seeks discovery are the following:

(a)       Documents    from    the    Defendants’   former    accountant,    Aaron

Humphries, regarding the debt.

(b)      Current account statements since 31 March 2011.

CARL WILLIAM FRICKLETON v STAG TRADING LIMITED [2015] NZHC 1770 [29 July 2015]

(c)       Documents  relating  to  all  the  prosecutions  and  complaints  to  the

Motor Vehicle Dealers Institute involving Mark Frickleton.

(d)Documents relating to all court proceedings in which Mark Frickleton has been found to have committed fraud.

[4]      In respect of the last two of the above categories, I am advised that they did not form part of the plaintiff ’s original discovery application.  Mr Freeman contends that they are irrelevant, and he opposes any amendment to the existing application to allow the plaintiff to pursue a further discovery application in respect  of them. Mr Grace accepts that these two categories go only to issues of credibility, and are not directly relevant to any issue disclosed in the pleadings.  In those circumstances, I am not inclined to allow any amendment to the interlocutory application to include these  documents.    If  and  to  the  extent  that  the  plaintiff  wishes  to  pursue  an application in respect of these two categories, a further interlocutory application will have to be made.  The issue of the relevance of these documents can be considered if and when any such application is made.

[5]      Disclosure of the first category of documents listed above is resisted by the defendants  on  the  basis  that  they  have  no  such  documents  in  their  control. Mr Mark Frickleton has sworn an affidavit to that effect, and Mr Grace has been unable to point to evidence establishing that the documents are or may be in the defendants’ control.  In those circumstances, I think Mr Frickleton’s affidavit must be treated as final on the point, at least in the absence of evidence that such documents  exist  and  are  in  the  defendants’ control.    The  defendants  and  their solicitors will be well aware of their ongoing obligations to the Court and to the plaintiff in the event that any such documents may be located in the future.   The application is dismissed insofar as it relates to this category.

[6]      The remaining category of documents is the current account statements since

31 March 2011.   Mr Freeman has undertaken to check with his client if such documents exist.   He advises that there should be no difficulty in providing these documents if they do.  In those circumstances, the sensible course is to adjourn this aspect of the application, to be brought back on for hearing if a determination in

respect of it is necessary.  Leave is accordingly reserved to the plaintiff to apply by memorandum for a fixture to hear the application insofar as it relates to the current accountant statements since 31 March 2011.

[7]      Costs on the application are reserved.

Associate Judge Smith

Solicitors:

Jefferies Raizis, Wellington for the plaintiff

Thomas Dewar Sziranyi Letts, Lower Hutt for the defendants