Gillespie v Guest - [2013] NZHC 668

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-1629 [2013] NZHC 668

BETWEEN BRUCE JAMES GILLESPIE, PRUDENCE JULIET GILLESPIE, CHRISTOPHER JAMES GILLESPIE, NICHOLAS JOHN GILLESPIE AND JONATHAN PAUL GILLESPIE Plaintiffs

ANDANDREW JOHN DEXTER GUEST First Defendant

ANDVIRANDA PROPERTY NETWORK LIMITED
Second Defendant

ANDRSM PRINCE & PARTNERS First Third Party

AND MORRISON CREED
Second Third Party (DISCONTINUED)

ANDGRAEME HAMILTON SINCLAIR Third Third Party

Hearing: 10 May 2012

Counsel: A Barker for Plaintiffs
A J D Guest, First Defendant, in person

Judgment: 4 April 2013

JUDGMENT (No.1) of ASSOCIATE JUDGE R M BELL On Discovery Application

This judgment was delivered by me on 4 April 2013 at 1:00pm
pursuant to Rule 11.5 of the High Court Rules.

...................................
Registrar/Deputy Registrar

GILLESPIE V GUEST HC AK CIV-2011-404-1629 [4 April 2013]

[1] This decision comes long after the hearing, far too long. I appreciate that the parties have been kept waiting and that the delay must have caused inconvenience. I apologise for the time taken.

[2] The plaintiffs, the trustees of the Gillespie Family Trust, apply for particular discovery and for inspection of computers. They seek these orders:

1. That the first and second defendant provide further and better discovery by way of an affidavit of documents in relation to the following documents or categories of documents:

a.all documents relating to the involvement of the first defendant in the business of the second defendant after 2005, including but without limitation the Management Agreement under which he was employed by that company.

b.all documents relating to the relationship between the defendants and Titan 1 Finance Ltd, related parties of Titan 1 Finance, and persons associated with Titan 1 Finance (referred to generally as “Titan 1 Finance”), including but without limitation:

i. all documents relating to the nature of the investment by
Titan 1 Finance in the defendants;

ii. all documents relating to the nature of the business or working relationship between the defendants and Titan 1
Finance;

iii. all documents relating to any investments made by the defendants in or through Titan 1 Finance, or by Titan 1
Finance in, through or in association with the defendants;

iv. all documents relating to any loans or advances made by the defendants to Titan 1 Finance including details of their repayment;

v. all documents relating to the default by Titan 1 Finance in repayment of the advance by the plaintiffs, including all correspondence relating to attempts by the defendants and representatives of Titan 1 Finance to negotiate a repayment of that advance.

c. all correspondence between the period of 31 January 2007 through to 31 July 2007;

d. all documents relating to the loan by Roy Toms to Titan 1
Finance;

e. all documents relating to the plaintiffs’ investment in the commercial property at Ti Rakau Drive, including all documents relating to the purchase of that property by previous clients of the defendants;

f. copies of the financial accounts for the second defendant for the period 2005 to the present time.

2. That the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gillespie v Guest

Details

AGLC: Gillespie v Guest [2013] NZHC 668
Case: [2013] NZHC 668
Decision Date: 4 April 2013

CaseChat Overview and Summary

This case involved an application for particular discovery and inspection of computers in a proceeding brought by the Gillespie Family Trust against Mr Andrew Guest and his company, Viranda Property Network Ltd. The plaintiffs alleged that Mr Guest, who was their financial adviser, had given them bad advice about an investment in Titan 1 Finance Ltd. The plaintiffs sought discovery of various classes of documents and inspection of Mr Guest’s computer systems. The defendants opposed the application. The court found that there were grounds to believe that Mr Guest had failed to discover documents that should have been discovered. The court considered the nature of the proceeding and the discretion under the current discovery rules. It concluded that a tailored discovery approach was appropriate. The court ordered Mr Guest to provide a fresh affidavit of documents and allowed inspection of his computer systems. The parties were directed to confer to agree on the terms of the inspection order.

Orders