GDF I LLP v Melview (Kawarau Falls Station) Investments Limited (in receivership)
[2012] NZHC 2230
•30 August 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2010-404-7701 [2012] NZHC 2230
BETWEEN GDF I LLP Plaintiff
ANDMELVIEW (KAWARAU FALLS STATION) INVESTMENTS LIMITED (IN RECEIVERSHIP)
Defendant
CIV-2010-404-7702
AND BETWEEN ALAN FALL Plaintiff
ANDMELVIEW (KAWARAU FALLS STATION) INVESTMENTS LIMITED (IN RECEIVERSHIP)
Defendant
Hearing: On the papers
Counsel: NT Davies and NMH Whittington for Plaintiff
NG Colson and J Cochrane for Defendant
Judgment: 30 August 2012
JUDGMENT (NO 3) OF RODNEY HANSEN J
This judgment was delivered by me on 30 August 2012 at 4.30 p.m., pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date: ………………………….
Solicitors: Meredith Connell, P O Box 218, Auckland for Plaintiff
(Email: [email protected])
Bell Gully, P O Box 1291, Wellington 6140 for Defendant
(Email: [email protected])
GDF I LLP V MELVIEW (KAWARAU FALLS STATION) INVESTMENTS LIMITED (IN RECEIVERSHIP) HC AK CIV-2010-404-7701 [30 August 2012]
[1] In my judgment (No 2)[1] I directed that a document in respect of which the defendant, MKFSI, claimed litigation privilege should be produced for my inspection. I have now seen the document and considered further memoranda relating to the claim of privilege. For reasons which I can shortly state, I am satisfied that the claim should not be upheld.
[1] GDF I LLP v Melview (Kawarau Falls Station) Investments Ltd (in rec) HC Auckland CIV-
2010-404-7701, 16 July 2012.
[2] The document is a memorandum dated 2 September 2009 from Mr Nigel McKenna, the managing director of Melview Developments Limited (MDS), to Mr Alan Garrett of KordaMentha. Mr Garrett was employed by KordaMentha who were then the receivers of MKFSI. Mr Colson submitted that, read in the context of correspondence between the parties regarding the status of the sale and purchase agreement at issue in this proceeding, it is clear that at the time the memorandum was written the proceedings were clearly in contemplation and that the dominant purpose of the memorandum was to prepare for an apprehended proceeding.
[3] In his response, written of course without the benefit of access to the document, Mr Davies hypothesised, correctly, that the memorandum was written in reply to an email from Mr Garrett dated 28 August 2009. The memorandum makes that clear by quoting passages from the email to which it responds. The email was discovered by the Bank of Scotland (BOSI) (which had placed MKFSI in receivership) in response to an order for non-party discovery. The purpose of the email was to clarify statements made by Mr McKenna in a report to BOSI on the completion and feasibility of Stage 1 of the development at Kawarau Falls Station
which had been undertaken by Mr McKenna’s group of companies.[2] I agree with
Mr Davies that the receivers were seeking clearly information from Mr McKenna which would inform their decisions in the receivership and, in particular, to understand MKFSI’s obligations under the various agreements.
[2] See my first judgment in relation to discovery issues: GDF I LLP v Melview (Kawarau Falls
Station) Investments Ltd (in rec) HC Auckland CIV-2010-404-7701, 22 June 2012.
[4] Section 56 of the Evidence Act 2006 adopts the common law test that legal privilege applies to a document prepared for the dominant purpose of preparing for a
proceeding or an apprehended proceeding.[3] While a dispute had arisen and there seems little doubt that proceedings were in contemplation, I am left in no doubt that the dominant purpose of the memorandum was, as the plaintiffs say, to provide information for the purpose of conducting the receivership. There is no mention of the dispute in the memorandum and nothing to indicate that it was written for the purpose of obtaining legal advice.
[3] Jeffries v Privacy Commissioner [2010] NZSC 99; [2011] 1 NZLR 45 at [14].
[5] I conclude that the claim of privilege must be set aside and the document made available to the plaintiffs.
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