Gaskin v Stark
[2021] NZHC 204
•18 February 2021
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CIV-2020-412-26
[2021] NZHC 204
UNDER the Companies Act 1993 BETWEEN
GRAHAM KENNETH GASKIN and
ELIZABETH JOAN DUSTIN, as trustees of the DUSTIN FAMILY TRUST
Plaintiffs
AND
ALASTAIR DAVID STARK
First Defendant
AND
ALAN BEVIN MCKAY
Second DefendantAND
RICHARD DRUMMOND FRASER
Third Defendant
AND
MEAD STARK LIMITED
Fourth Defendant
Hearing: 3 February 2021 Appearances:
P J Dale QC for the Plaintiffs
D G Hurd for the First and Second Defendants
A Gaborieau for the Third and Fourth DefendantsJudgment:
18 February 2021
JUDGMENT OF ASSOCIATE JUDGE LESTER
This judgment was delivered by me on 18 February 2021 at 12.30 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar 18 February 2021
GASKIN v STARK [2021] NZHC 204 [18 February 2021]
[1] This judgment concerns applications by the plaintiffs and the defendants for discovery.
Background
[2] Ian Luke Dustin (Mr Dustin) was bankrupted by this Court on 7 March 2016. As a result, shares he held in two companies, Pisa Moorings Ltd (PML) and Pisa Moorings Vineyard Ltd (PMVL) vested in the Official Assignee. Mr Dustin held 26 per cent of the shares in each company.
[3] Mr Dustin was also owed a current account debt of $128,291 by PMVL which was called up by the Official Assignee on 8 April 2016.
[4] Shortly after Mr Dustin’s bankruptcy but prior to calling up the current account, discussions commenced between the Official Assignee and the first defendant, Alastair David Stark (Mr Stark) in respect of the sale of Mr Dustin’s shares.
[5] The plaintiffs allege that on 13 April 2016, in a telephone conversation between Mr Stark and a representative of the Official Assignee, Mr Stark made representations relevant to the value of the shares in the companies. It is also alleged that on 19 April 2016, in a subsequent conversation between the same parties, further representations were made in respect of value. A significant representation alleged is that Mr Stark said in respect of the major asset owned by PMVL – a large block of land – that he did “not have a problem” with that land being valued at around the rateable value of $1.02m.
[6] The plaintiffs allege that Mr Stark indicated a preparedness to do a package deal to acquire Mr Dustin’s shares for $200,000, inclusive of Mr Dustin’s current account entitlement.
[7] It is that the Official Assignee, based on the information provided by Mr Stark and allowing for a discount for Mr Dustin’s shares being a minority interest, concluded the offer of $200,000 was reasonable.
[8] The Official Assignee, in a document called a Deed of Settlement dated 19 May 2016 (the Deed), sold Mr Dustin’s shares to the remaining shareholders of PML and PMVL. The parties to the Deed are the Official Assignee in the bankruptcy of Mr Dustin, PMVL and PML. While the remaining shareholders of those companies are not named as parties, the Deed records the Official Assignee as selling the shares to them. Share transfers to those shareholders are attached to the Deed.
[9] The plaintiffs allege the defendants failed to advise the Official Assignee that PMVL was undertaking a subdivision of its land, which meant the land was worth significantly more than its rateable value. The plaintiffs say the Official Assignee entered into the sale of the shares in reliance on the contents of the telephone calls and on the basis that Mr Stark omitted material facts.
[10]The causes of action are as follows:
(a)first cause of action – against the first, second, third and fourth defendants for misrepresentation;
(b)second cause of action – against the first, second and third defendants for breach of fiduciary duties;
(c)third cause of action – against the first and fourth defendants for negligent misstatement;
(d)fourth cause of action – against the first and fourth defendants under the Fair Trading Act 1986; and
(e)fifth cause of action – against the first, second and third defendants under s 149 of the Companies Act 1993 (as at the time of the sale of Mr Dustin’s shares, the first and second defendants were directors of PMVL, and the first and third defendants were directors of PML); and
(f)sixth cause of action – against the first and fourth defendants in deceit.
[11] In respect of each cause of action, the plaintiffs plead they have suffered loss. The prayer for relief in respect of each claim reads: “Judgment … in an amount to be particularised not later than six months prior to the date of trial of this proceeding” or similar.
The plaintiffs’ application for discovery
[12] The plaintiffs seek wide-ranging discovery in relation to the financial position of PMVL and PML for the years 31 March 2012 through to 31 March 2020 and, in the broadest of terms, all company information relating to PMVL’s intended subdivision of the land. It will be necessary to assess each of the 14 categories of documents sought later in this judgment.
[13] The position of the defendants is that if they did commit any actionable wrong, which they deny, and if any loss was suffered as a consequence, such would be assessed at the settlement date for the sale of the shares. Accordingly, the defendants submit documents aimed at establishing the value of shares at any subsequent date are irrelevant.
[14] The defendants correctly record the pleading does not include a claim for an accounting of profits.
[15] Further, the defendants say the plaintiffs have “jumped the gun” somewhat, in that the plaintiffs’ application for discovery was made before the defendants have provided discovery.
The defendants’ cross-application for discovery
[16] There are two aspects to the defendants’ cross-application for discovery – one of which can be dealt with in short order.
[17] The defendants sought discovery of documents held by the Official Assignee relating to this proceeding to the extent such are not under the power and control of the plaintiffs. Counsel for the Official Assignee has provided to plaintiffs’ counsel all documents the Official Assignee considers to be relevant to the sale of the shares,
which are the subject of this proceeding. The plaintiffs’ disclosure of these documents in a supplementary list occurred only shortly before the hearing, as a result of which it served the documents. The defendants have not had a chance to review these documents, which affects how I will deal with their application.
[18] The Official Assignee advised she only became aware of the application on 22 January 2021 and has since been served. This has now allowed sufficient time for the Official Assignee to participate in the 3 February 2021 hearing and her appearance was excused.
[19] The defendants’ application for non-party discovery against the Official Assignee was adjourned pending the defendants being able to assess the documents discovered by the plaintiffs which were obtained from the Official Assignee.
Applicable legal principles
[20]Counsel for the defendants refer to the four stage approach initially outlined in
Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd.1 The approach asks:
(i)Are the documents sought relevant and, if so, how important will they be?
(ii)Are there grounds for belief that the documents sought exist? This will often be a matter of inference. How strong is that evidence?
(iii)Is discovery proportionate, assessing proportionality in accordance with pt 1 of the discovery checklist in the High Court Rules 2016?
(iv)Weighing and balancing these matters, in the Court’s discretion and applying r 8.19 is an order appropriate?
The real issue here is relevance.
1 Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd [2015] NZHC 2760 [2018] NZAR 600, at [14].
[21] The defendants recognise it is the effect of the subdivision on the value of the shares that has given rise to the current claim. The defendants’ submissions review a number of the weaknesses they say exist in relation to the plaintiffs’ claim and in particular refer to non-reliance clauses in the Deed. The defendants also rely on the Official Assignee and/or Mr Dustin causing or contributing to the plaintiffs’ loss by failing to make sufficient enquires as to the nature of the underlying assets in the company. For instance, it appears the Official Assignee did not speak to Mr Dustin prior to the sale of the shares. The defendants also submit that, as the subdivision consent for the PMVL land was granted prior to the Deed, the subdivision details were a matter of public knowledge.
Addressing the plaintiffs’ application
[22] The plaintiffs say the date range for the documents to be discovered by the defendants should not come to an end with the sale of the shares as the plaintiffs will argue in respect of the common law causes of action that damages should be calculated as at the date of the hearing and not the date of the alleged breach. The plaintiffs also submit that in relation to the fiduciary duty cause of action and the cause of action under the Companies Act, that an account of profits is available.
[23] I accept Mr Dale QC’s submissions for the plaintiffs that it is not possible at this stage of the proceeding to say whether the normal rule that damages are calculated as at the date of breach will be adopted for the common law causes of action, or whether the account of profits claim foreshadowed by counsel, but as yet unpleaded, will succeed.
[24] Mr Hurd, counsel for the first and second defendants, presented the submissions in opposition to the plaintiffs’ application for discovery on behalf of all defendants. Mr Hurd sought to emphasise the strength of the affirmative defences and understandably focused on the claim as presently pleaded to support the submission that the plaintiffs have not elected to sue for an account of profits. In Mr Hurd’s submission, it follows that discovery should not be ordered on the basis of what the pleading might be in the future. Mr Hurd pointed to the formulation of loss by the plaintiffs in respect of each cause of action being based on loss and submitted an
account of profits is not based on the plaintiffs’ loss but on the disgorgement of profits received by the defendants.
[25] Mr Dale has for some time been foreshadowing an amendment to the statement of claim to plead an account of profits. Such advice accompanied the plaintiffs’ request for the documents sought in this application. Mr Dale explained that decision was prompted by discovery from the defendants as to the amount received from the subdivision.
[26] Mr Hurd accepted the practical reality that there would be little point determining the discovery application on a pleading point when an amendment answering that point had already been foreshadowed and would be a formality to complete.
[27] Mr Hurd, however, went further and said the real issue was whether there was a tenable case for an account of profits. He referred to the following passage from Tipping J’s decision in Estate Realties Ltd v Wignell, where his Honour said:2
A person in a fiduciary relationship with another who acquires property from that other in breach of fiduciary duty does so under a contract which is voidable, not void. The fiduciary, by entering into the voidable contract, becomes potentially a constructive trustee of the subject-matter for the other party. If the contract is set aside the Court may by means of the concept of constructive trust order the fiduciary to return the property to the other party, subject to refund of such benefits as the other party may have received under the contract and any other appropriate adjustments.
[28] Mr Hurd said there is no pleading from the plaintiffs seeking to set aside the contract. He said that if such an amendment were made then the defendants would have to consider their position, but unless and until that amendment is made, the discovery sought should not be made.
[29] I do not accept this submission. I take what Tipping J said in the above passage as meaning that where a constructive trust is appropriate, part of the formal granting of that relief is the setting aside of the contract. Further, his Honour said:3
2 Estate Realties Ltd v Wignell [1992] 2 NZLR 615 (HC) at 631.
3 At 631.
I note that on p 496 of my first judgment I said that Estate Realties had not sought to set aside the transactions. That was too loosely expressed. I meant set aside in the sense of recovering the shares in specie.
The intervention of a bona fide purchaser prevented that but does not prevent the setting aside of the contract subsequently so as to impress upon the profits a constructive trust for the plaintiff.
[30]In what amounted to his Honour’s liability judgment, Tipping J said:4
The relief sought by Estate Realties is not damages but an account of profit. It has not sought to set aside the transactions because that would now be quite impracticable in view of what has happened since.
[31] His Honour found that the share purchase in that case was made in breach of the defendant’s fiduciary duty and the plaintiff was prima facie entitled to an account of profits.
[32] At that hearing, by agreement, no evidence was called in respect of what could be called “remedy issues.”5
[33] While I accept the force of Mr Hurd’s argument that the pleading as it stands does not plead the pre-requisites for relief on an account of profit basis, I am not satisfied the pleading’s failure to seek expressly the setting aside of the Deed is materially different from the pleading lacking an express claim for an account of profits.
[34] Mr Hurd submitted that the plaintiffs need to elect whether to seek damages or an account of profits. That is correct but the plaintiffs can only make such an election once they have discovery of what those profits were. The Laws of New Zealand, in discussing the remedies for a breach of confidence under the heading “Election of remedy”, says:6
It is usual for a plaintiff in a prayer for relief for breach of confidence to seek damages or an inquiry into damages rather than an account of profits. However, the plaintiff must elect which of these alternative modes of recover he or she seeks, and accordingly must make a careful assessment of the facts before determining what mode of financial recovery produces the better result. For example, where a defendant has profited from wrongful use of
4 Estate Realties v Wignell [1991] 3 NZLR 482 (HC) at 496.
5 At 496.
6 John Katz Laws of New Zealand. Remedies to Action for Breach of Confidence (online ed) at
[157] (footnotes omitted) (emphasis added).
confidential information but the plaintiff would not have been able to take any or full advantage of the defendant’s opportunity, the plaintiff’s loss in terms of damages may be slight, whereas an account of profits may produce more substantial compensation. Discovery and interrogatories are available for the purposes of assessing the extent of wrongdoing and the profit made by the defendant.
[35] The practical reality is that the plaintiffs here cannot meaningfully elect between remedies until they have all the relevant facts. While, as I have said, the above passage was made in the discussion of remedies for a breach of confidence, the need for a plaintiff to have all relevant information before a meaningful election can be made applies here in the same way.
[36] This is not a situation where the defendants were taken by surprise at the hearing by the fact that the plaintiffs intended to pursue a loss of profits claim. Such was made express in the letter setting out the categories of discovery which are the subject of this application.
[37] This approach is not to discount the value of clear and precise pleadings. Mr Hurd’s points were properly made. Mr Hurd equally accepted that this application was not the place to run what would amount to a strike-out or defendants’ summary judgment in respect of the plaintiffs’ causes of action or the plaintiffs’ entitlement to a particular type of relief. In my view, to require the plaintiffs to, in effect, bring a fresh application for discovery after a formal amendment to the relief sought, would not be an efficient use of resources for either party.
[38] As to whether the date of assessment of damages in the common law causes of action should be at the date of hearing, Mr Hurd submitted there was no particular factor about the circumstances of this case that warranted a departure from the normal rule that damages be assessed at the date of breach. However, such may well depend upon the factual findings made in respect of the representations and what the discovery sought by the plaintiffs may show.
[39] I am satisfied it is appropriate in the circumstances of this case that the defendants provide further discovery relevant to the value of PML and PMVL, and in respect of the advancement of the subdivision of PMVL’s land.
[40] Of the 13 categories of documents sought, the defendants agreed to provide only those referred to in Category 12. Further, the defendants say a number of the categories sought are “impossibly broad”.
Category 1 – finalised financial statements for PML and PMVL for the years ended 31 March 2012 and 31 March 2020, respectively
[41] Given what I have said about the date of calculating loss, these documents will be relevant. These documents are to be discovered.
Category 2 - management accounts for PMVL and PML after 31 March 2020
[42] The defendants say that neither company maintains management accounts. Therefore, there are no documents to be discovered. Such can be confirmed in the defendants’ supplementary list.
Category 3 – communications by the directors of PMVL and PML with shareholders of those companies between 31 March 2012 and the current date, especially in relation to the resource consent
[43]I agree with the defendants that this category is too widely expressed.
[44] Correspondence relating to the planned subdivision, its funding and management, and the realisation of the properties will be relevant. Any correspondence that refers to the value of the companies’ land, their shares or the purchase of the shares from the others will be discoverable.
Category 4 – Minutes of directors’ meetings since March 2011
[45] This category is again, too broadly stated. It is only to the extent the Minutes refer to matters relevant to the proceeding - in particular, the value of the companies’ assets and the advancement of the subdivision and its funding – that the Minutes will be discoverable.
Category 5 – Resolutions of directors of PML and PMVL since March 2011
[46] Again, this is too widely expressed and it must be subject to the restriction referred to in the preceding paragraph.
[47]The application for discovery for this category goes on to say that it includes:
… the resolution offered at that AGM of PML held in 2006 to explain the short term advances of $342,000 in the 2005 financials to companies owned by the directors of PML and the short term advances of $89,000 in the previous year.
[48]This was not pursued at the hearing.
Category 6 – all correspondence with Patterson Pitts Partners Ltd (Patterson Pitts) and Mr Dymock relating to the advancing of the subdivision resource consent granted on 11 May 2016 and Category 7 - all correspondence received from Patterson Pitts and Mr Dymock “on this matter”
[49] I deal with Categories 6 and 7 together. Patterson Pitts were consultants used by the companies on the subdivision which has been, or has largely been, successfully completed. The defendants did not object to providing this information for the period prior to settlement (as was the case with a number of the other categories).
[50] The defendants’ discovery is to include these categories. No doubt counsel can liaise as to whether some of the more practical documents relating to the mechanics of the subdivision need to be disclosed or whether they can be disclosed as a group. If any issue arises in that regard, counsel may return to me.
Categories 8 and 9 – all correspondence with the Central Otago District Council in relation to the relevant resource consent and all payments made to the Council
[51] I cannot see how details of the payments made to the Council are relevant. Such transactional and administrative steps will not cast any real light on the value of the subdivision. Correspondence with the Council that identifies whether there are any barriers to the completion of the subdivision may well be relevant, as opposed to routine correspondence about inspections and the like. Again, if any issue arises counsel may raise them with me.
Category 10 – correspondence with the Cromwell office of Harcourts
[52] Given the defendants have agreed to provide Category 12 – which were copies of all sale and purchase agreements of the lots sold in the subdivision, including the dates titles issued - the defendants’ discovery is to include correspondence with the
Cromwell office of Harcourts to the extent it is relevant to the values of the properties as opposed to routine correspondence in relation to marketing and the like.
Category 11- valuations of assets of the companies
[53]This category is relevant and should be discovered.
Category 12 – copies of all sale and purchase agreements of the lots sold in the subdivision
[54] I have already referred to this category (under Category 10 above) as being agreed.
Category 13 – details of all the remaining properties owned by PMVL
[55] This information will be contained in the latest accounts of PMVL. Given the directions I have made in respect of discovery, should the reference to assets in PMVL’s accounts require further clarification, I would expect such to be provided. Again, if any issue arises in that regard, counsel may return to me.
[56] The above directions are sufficient to deal with the plaintiffs’ discovery application. The plaintiffs have been largely successful. I direct the defendants are to provide a further list of documents addressing the above within 20 working days of the date of this Judgment.
Costs
[57] Costs are reserved. The plaintiffs may want to reflect on the fact that they have had, in effect, the benefit of the doubt in respect of the pleading issue.
[58] If counsel cannot agree costs, then brief memoranda (not more than five pages) may be filed.
The defendants’ cross-application
[59] The defendants’ application for discovery has two aspects, apart from the non-party element referred to at [17] above.
[60] The defendants separated the categories of documents sought from the plaintiffs into, firstly, a category of documents that they say the plaintiffs or Mr Dustin will hold, and, secondly, documents the defendants say the plaintiffs have the power to obtain from the Official Assignee pursuant to the Deed.
First Category
[61] By the time of the hearing on 3 February 2021, only one category remained in issue and there was only one minor issue in relation to the second category.
[62] The minor issue related to redactions made on an otherwise privileged letter for which privilege had been waived.
[63] The privileged document was a letter from the Official Assignee’s solicitors to Mr Dale responding to the categories of documents that the defendants say the plaintiffs should obtain from the Official Assignee. Privilege was waived in part to illustrate that the plaintiffs had responded to the defendants’ requests by asking the Official Assignee to provide the documents sought. This is no longer a live issue as after the conclusion of the hearing the letter was made available to the defendants without redactions.
[64]The category that remained in issue was as follows:
Copies of demands, proceedings, proofs of debt between the plaintiffs and Mr Dustin and/or between the plaintiffs and the Official Assignee relating to the debt owed or claimed to be owed by the plaintiffs, for which the plaintiffs proved in Mr Dustin’s bankruptcy and which is referred to in the Deeds of Assignment, dated March 2020 and 15 December 2020.
[65] Ms Gaborieau, counsel for the third and fourth defendants, correctly notes that the statement of claim refers at para 2(ii) to the Dustin Family Trust being a creditor in Mr Dustin’s bankruptcy.
[66] I do not see how the claim by the Dustin Family Trust to be a creditor in Mr Dustin’s bankruptcy has any relevance to this proceeding. As I said to Mr Dale, I am not sure why such is pleaded. The Dustin Family Trust brings the proceeding on the strength of causes of action assigned by the Official Assignee by Deed. While the
Deeds of Assignment relied on do refer to the plaintiff Trust being a creditor of Mr Dustin, the assignment is not conditional on the Trust being a creditor.
[67] Ms Gaborieau could not explain how the question of the Trust’s status as a creditor of Mr Dustin would assist the defendants in defending the proceeding.
[68] I conclude that this category is not relevant and I decline the application in respect of this category of documents.
Second Category
[69] The second category relates to documents the defendants seek from the Official Assignee’s file. There are six categories in total. These are the categories referred to in the letter from the Official Assignee referred to at [63] above. Some of the documents sought will be in the material recently provided which, as I have said, the defendants have not had a chance to review.
[70] This aspect of the defendants’ discovery is different from its non-party discovery application. The defendants say the plaintiffs have the ability to call for documents from the Official Assignee pursuant to cl [2.4] of the Deed of Assignment which provides:
The Official Assignee agrees, subject to clauses 2.2(a)(iii) and 2.3(a), that he shall provide reasonable assistance which may be necessary under the rules of Court to assist with pursuing the Rights of Action.
[71] The provisos in cl 2.4 have no application. Defendants’ counsel relied on Winkelmann J’s (as she then was) decision in Dotcom v Attorney-General to submit this clause gives the plaintiffs the power to call upon the Official Assignee to provide the documents sought.7 Such was not disputed by Mr Dale, and indeed Mr Dale has already taken steps to request from the Official Assignee the documents sought by the defendants.
[72] The issue raised by Ms Gaborieau, and I consider it is a valid one, is that counsel for the Official Assignee may well have considered the requests without the
7 Dotcom v Attorney-General [2014] NZHC 1343.
benefit of the defendants’ explanation as to why the material was relevant. This is not to suggest it is accepted that all of the material requested exists. However, the way discovery has developed means counsel and the Court are handicapped in dealing with this application in a final way. With the plaintiffs having provided a list of documents in order for the defendants to obtain what would amount to an order for further and better discovery, it would be necessary to demonstrate there were reasonable grounds to believe the requested documents exist. A thorough review of the discovery to date has not been possible and so the following assumes that documents may exist in the categories sought.
[73] Most of the documents sought by the defendants are aimed at identifying whether there is any material whatsoever held by the plaintiffs that touches or concerns the Official Assignee’s efforts to ascertain the value of the shares that were sold.
[74] Accordingly, the defendants seek copies of communications and file notes between the Official Assignee and Mr Dustin that refer to the sale of the shares in any way or the value of the companies’ assets. Indeed, Ms Gaborieau went so far as to say that documents that did not refer to the sale in any way would also be relevant as they would show how the Official Assignee allegedly failed to undertake proper enquiries prior to the sale of the shares. Such documents may well be relevant prior to the sale of the shares, but post-settlement correspondence that has nothing to do with the sale of the shares would seem not to support Ms Gaborieua’s proposition. However, other documents held by the Official Assignee that touch or concern the value of the shares or the value of the assets held by PML/PMVL would be relevant.
[75] I do not accept that requests for financial disclosure from the Dustin Family Trust are relevant. Of the six categories sought in this class of documents, what I can say is that I consider Category 4 to be irrelevant. This category refers to the communications regarding arrangements recorded in the Deed of Assignment as to the division in this proceeding of any recovery between the plaintiffs and the other major creditors in Mr Dustin’s bankruptcy. Save to the extent that such communications may expressly refer to the value of the shares or PMVL’s underlying assets or the sale price, they are not relevant to the causes of action. Even if such references are made, it may well be that those documents will be privileged.
[76] The other category on which I make specific reference is Category 3, which seeks the Official Assignee’s internal policies or guidance when dealing with the administration of a bankrupt’s estate. The Official Assignee has provided one of its modules dealing with the valuation of shares. The defendants wish to obtain or ascertain whether there are other modules which set out the types of issues and questions the Official Assignee should raise with bankrupts.
[77] Mr Dale said he would raise these issues with counsel for the Official Assignee and I have set out my observations on this group of documents to assist in that regard. Mr Dale advised after the hearing that the Official Assignee intends to file a list of documents.
[78] These aspects of the defendants’ discovery application are adjourned. If counsel for the Official Assignee, when viewing the request for documents through the lens of the defendants’ affirmative defences, determines that further material is relevant, then I have no doubt it will be provided in the list I have, since the hearing, been advised is to be filed. If the Official Assignee does not consider there is further relevant material, then the defendants may request a telephone conference (with me) to address how they wish this remaining aspect of their application to be dealt with.
Results
[79] For the above reasons, the defendants’ application for discovery of the second category of documents, along with costs on that application, is adjourned. Per [68], the defendants’ application in respect of the first category of documents is declined.
[80]There will be a telephone conference on Wednesday 17 March 2021 at
4.00 pm to address the future of the defendants’ application and case management generally.
[81] The plaintiffs’ application for discovery is largely successful, as set out at [41] to [56]. I direct that the defendants provide a further list of documents addressing my conclusions in regard to the categories of documents sought by the plaintiffs, within 20 working days of the date of this Judgment.
Addendum
[82] As I noted, counsel advised after the hearing that the letter referred to at para [62] was provided to the plaintiffs without redaction. Mr Hurd sought leave to produce the letter and make further submissions. Given I have adjourned that part of the defendants’ discovery application relevant to documents held by the Official Assignee, I consider it best for the Official Assignee to provide her List having reviewed the comments made above. If issues remain after the List is provided in relation to the extent of the Official Assignee’s discovery, then defendants’ counsel can seek a telephone conference with me.
Associate Judge Lester
Solicitors:
Koo Telle Lawyers, (E Telle), Auckland (new representation) Sandi Anderson & Partners, Auckland
Parker Cowan, Queenstown
Checketts Mckay Law Limited, Alexandra
Copy to counsel:
P J Dale QC, Barrister, Auckland
D G Hurd, Barrister, Omakau, Central Otago
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