Gilmer Investments Ltd v Wilson Parking New Zealand Ltd

[2021] NZHC 1071

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-2444

[2021] NZHC 1071

BETWEEN

GILMER INVESTMENTS LTD

Applicant

AND

WILSON PARKING NEW ZEALAND LTD

Respondent

Hearing:

13 May 2021

Counsel:

A E Murray for Applicant

L M McKeown for Respondent

Judgment:

13 May 2021

JUDGMENT OF BREWER J

This judgment was delivered by me on 13 May 2021 at 4 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:

DLA Piper (Auckland) for Applicant

Duncan Cotterill (Wellington) for Respondent

GILMER INVESTMENTS LTD v WILSON PARKING NEW ZEALAND LTD [2021] NZHC 1071 [13 May 2021]

Introduction

[1]                 The applicant (“Gilmer”) applies for an order for particular discovery against the respondent (“Wilson”) before Gilmer has commenced a proceeding against Wilson. The application is made pursuant to r 8.20 of the High Court Rules 2016 which states:

(1)This rule applies if it appears to a Judge that—

(a)a person (the intending plaintiff) is or may be entitled to claim in the court relief against another person (the intended defendant) but that it is impossible or impracticable for the intending plaintiff to formulate the intending plaintiff’s claim without reference to 1 or more documents or a group of documents; and

(b)there are grounds to believe that the documents may be or may have been in the control of a person (the person) who may or may not be the intended defendant.

(2)The Judge may, on the application of the intending plaintiff made before any proceeding is brought, order the person—

(a)to file an affidavit stating—

(i)whether the documents are or have been in the person’s control; and

(ii)if they have been but are no longer in the person’s control, the person’s best knowledge and belief as to when the documents ceased to be in the person’s control and who now has control of them; and

(b)to serve the affidavit on the intending plaintiff; and

(c)if the documents are in the person's control, to make those documents available for inspection, in accordance with rule 8.27, to the intending plaintiff.

(3)An application under subclause (2) must be by interlocutory application made on notice—

(a)to the person; and

(b)to the intended defendant.

(4)The Judge may not make an order under this rule unless satisfied that the order is necessary at the time when the order is made.

[2]                 Gilmer leases a vehicle parking building to Wilson. The rent is composed of a regular recurring sum plus a share of revenue if the revenue exceeds a point calculated by a specified formula.

[3]                 Gilmer considers that Wilson has breached the lease by failing to comply with provisions designed to enable Gilmer to be assured that Wilson is calculating revenue correctly for the purpose of determining whether the rent should include a revenue component.

[4]                 Gilmer also submits that it has a report from KPMG which at least casts doubt on Wilson’s report of revenue in 2019 from casual parking. And there is an apparent non-return of $0.50 card charges which Gilmer submits should be included in the revenue calculation.

[5]                 Gilmer submits it has an entitlement, or may be entitled, to claim relief against Wilson. Gilmer submits it is impossible or impracticable for it to formulate its claim without reference to the documents it wishes to have discovered, and that it cannot get access to the documents otherwise because of Wilson’s intransigence. It submits there is no doubt that the documents may be or may have been in Wilson’s control.

[6]                 Gilmer submits also that I can be satisfied that the order sought is necessary at this time.

[7]The particular discovery sought by Gilmer is broad:

1.1That the respondent file and serve an affidavit of documents related to its parking operation at 5-11 Gilmer Terrace for the financial years ended 30 June 2014, 2015, 2016, 2017, 2018, 2019 and 2020, as follows:

1.1.1All sublease agreements relevant to the carpark at 5-11 Gilmer Terrace, which is owned by the applicant and leased by the respondent.

1.1.2Bank deposit records showing the respondent's receipt of sublease payments.

1.1.3Armourguard and Ezicom cash takings statements or remittance advice.

1.1.4Records of payments from the cash payment ticketing machine.

1.1.5Bank deposit records showing the respondent’s receipt of Armourguard and Ezicom cash takings.

1.1.6Details of Wilson’s reconciliation process in relation to cash payment for Casual Parks.

1.1.7Records of bank card payments from the bank card payment ticketing machine.

1.1.8Bank deposit records showing the respondent's receipt of bank card payments.

1.1.9Records showing the respondent’s receipt of $0.50 transaction fees for bank card payments.

1.1.10Information as to how the respondent reconciles that payment to the applicant’s account, which may include process memos used in finance operations or provided to the internal or external auditors to understand the control environment.

1.1.11Parkmate payments statements or remittance advice (including detail of any deducted service fees).

1.1.12Bank deposit records showing the respondent’s receipt of Parkmate payments.

1.1.13Any communication between Parkmate and the respondent about payments relating to the carpark at the Premises, including regular reporting, reconciliations, or automated records.

1.1.14Records showing the respondent’s receipt of $0.50 transaction fees for Parkmate payments.

1.1.15Information as to how the respondent reconciles that payment to the applicant’s account, which may include process memos used in finance operations or provided to the internal or external auditors to understand the control environment.

1.1.16A detailed description of the respondent’s processes for recording and allocating Gross Revenue for Casual Parks to each facility.

1.1.17The source documents and/or records that the respondent uses to compile its monthly vacancy counts for the period from July 2014 to the date of the applicant's Application.

1.1.18A reconciliation of the respondent's Gross Revenue from Permanent Parks and Casual Parks to its audited financial statements, including a breakdown to the different payment methods.

[8]                 Wilson contends that none of the prerequisites for an order under r 8.20 are made out by Gilmer. Wilson particularly criticises Gilmer’s characterisation of the disclosure already made by Wilson. Wilson says that far from being intransigent it has been particularly co-operative. Wilson submits there is no extant or probable entitlement to a claim and in its submissions goes into the sort of detail that would be required for an application for summary judgment or strike out.

Decision

[9]                 I do not accept it is impossible or impracticable for Gilmer to formulate its claim without reference to one or more of the documents it seeks in pre- commencement discovery. Accordingly, I am not satisfied that the order is necessary at this time.

[10]             On Gilmer’s evidence, it can bring a proceeding for specific performance of the lease. That will trigger discovery rights.

[11]             On Gilmer’s evidence, it can include an action that Wilson is in breach of the lease by under-reporting revenue. The KPMG report can be relied upon if Gilmer wishes to do so.

[12]             I accept that for such a claim quantum would not be able to be established pre- commencement. But it is not necessary that quantum be established pre- commencement. It is common for claims to be made seeking to establish liability with particulars of quantum to be given post-discovery.

[13]             It is common, also, for statements of claim to be amended as discovery clarifies the evidential position.

[14]             Ms Murray, in the hearing before me, accepted that Gilmer’s position is that it has a claim against Wilson, that the claim is for breach of the lease in several respects, and that it can file a proceeding. But, she submits, Gilmer cannot particularise the claim as the rules require and that is a foundation for the exercise of the r 8.20 discretion.

[15]             I accept that “impossible or impracticable” means an “inability to plead the claim in accordance with the requirements of the rules”.1 And, of course, a statement of claim:2

… must give sufficient particulars of time, place, amounts, names of persons, nature and dates of instruments, and other circumstances to inform the court

1      Exchange Commerce Corporation Ltd v New Zealand News Ltd [1987] 2 NZLR 160.

2      Rule 5.26(b).

and the party or parties against whom relief is sought of the plaintiff’s cause of action.

[16]             But, that does not mean a statement of claim must particularise pleadings perfectly. Particulars are not pleadings, they are “illuminative” of pleadings.3 A sufficiency of illumination is the requirement. And, as I have said, a plaintiff can plead that further particulars will be given following discovery.

[17]For these reasons, I decline the application.

Costs

[18]             Wilson is entitled to costs. In the normal course, I would award them on a 2B basis. If either party disputes that 2B costs should be awarded, memoranda must be filed within 10 working days of the date of this judgment. In the absence of memoranda, the position will crystallise as costs on a 2B basis.

Brewer J

3      Ayers v LexisNexis NZ Ltd [2012] NZHC 3055, (2012) PRNZ 313.