Heli Holdings Limited v The Helicopter Line Limited

[2015] NZHC 1282

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CIV-2013-425-310 [2015] NZHC 1282

BETWEEN

HELI HOLDINGS LIMITED

Plaintiff

AND

THE HELICOPTER LINE LIMITED First Defendant

AND

TOTALLY TOURISM LIMITED Second Defendant

Appearances:

D J Heaney QC, S J Wethey, A Hough for the Plaintiff

Q Wensley, R Cunliffe, T C Weston QC for the Defendants

Date ofRuling:

11 May 2015

RULING 2 OF NATION J

[1]      This morning  I received a memorandum from  counsel for the Plaintiff’s referring to some further developments that had taken place over discovery as a result of some discussions which took place with the Court last week.  This morning when we began the hearing, Mr Weston raised matters of concern to the defendants – I will deal with those now.

[2]      Last week there was a discussion as to whether or not the plaintiff should discover further documents they might have around the potential purchase of replacement helicopters which was being considered by the plaintiff in 2013.  The suggestion was that the plaintiff was considering replacing the twins, or some of them, so that they could be used by THL, pursuant to the various lease agreements.

[3]      Without me making any order, it was agreed the plaintiff would see if there were any further relevant documents and would make them available.

HELI HOLDINGS v THE HELICOPTER LINE & ANOR [2015] NZHC 1282 [11 May 2015]

[4]      Mr  Weston  took  me  through  what  had  been  provided  and  the  steps  the defendant had to take to obtain unredacted copies of relevant emails and so on.

[5]      It seemed clear to me that the documents that were ultimately discovered were relevant to matters that are of issue in this case and the documents should have been discovered quite some time ago.

[6]      Mr Weston said, in view of the delays and the difficulties that have occurred, he wants some sworn evidence, that would normally be by way of affidavit from an appropriate person, confirming that all relevant documents have in fact been discovered.

[7]      The other issue he raised related to documents which dealt with the book value  of  the  helicopters  owned  by  the  plaintiff  and  leased  to  THL.    He  says, primarily, with regard to the issue of damages, the book value of those helicopters in

2013, around the end of the financial year 2013/2014, is relevant and that documents which refer to the book value of those helicopters should have been discovered. Some now have been but, again, given the difficulties the defendant had faced in obtaining those documents, he said there should be a verifying affidavit from the plaintiff confirming that the defendants had now received everything that was relevant.

[8]      Mr Heaney responded to what Mr Weston had submitted to the Court.  He took responsibility for the fact that, with regard to potential purchase of helicopters, not all relevant documents had been discovered.  He said that it was really an error of judgment on the part of the lawyers who were assessing the information that they thought needed to be made available but he said that he is now satisfied, from the enquiries he has made, that everything is now before the Court.

[9]      As far as book value is concerned, he said that the plaintiff can provide documents which show the book value that the plaintiff was attributing to these helicopters at the end of the 2013 financial year and going into the 2014 financial year.  He says that those documents have been made available.

[10]     That now gets me to the point where it seems that the plaintiff has provided the documents which are relevant on these particular issues.  The plaintiff accepts it has an obligation to provide discovery in relation to those documents, dealing both with the potential replacement of helicopters and book value around 2013/2014.

[11]     I however  consider  that,  given  the  difficulties  that  have  occurred  in  the defendants receiving these documents, it is necessary and appropriate that the appropriate witness from the plaintiff confirm that they have made full enquiry and that full discovery has been made.

[12]     Mr  Heaney  suggests  that  probably  the  appropriate  person  to  give  that evidence is Mr Steele, who I understand is in-house counsel for the plaintiff, and, unless there are any further submissions, I direct that he should be required to give that evidence after making sure that there has been a full enquiry as to what has been made available and whether or not there is anything else that should be made available.

Solicitors:

Heaney & Partners, Auckland

Macalister Todd Phillips, Queenstown