Hyzon Motors Inc v Bartlett
[2024] NZHC 1193
•31 May 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-1755
[2024] NZHC 1193
BETWEEN HYZON MOTORS INC
Plaintiff
AND
MICHAEL BARTLETT
Defendant
Hearing: 17 April 2024 Appearances:
S C Trevella and G Worthington for the Plaintiff T Cooley for the Defendant
Judgment:
31 May 2024
JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR
[Plaintiff’s applications for further and better discovery and better answers to interrogatories; defendant’s application for orders for particular discovery]
This judgment was delivered by me on 31 May 2024 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules
…………………………. Registrar/Deputy Registrar
Solicitors:
Bell Gully (Stephen Trevella/G Worthington), Auckland, for the Plaintiff Brookfields (Tyrone Cooley), Auckland, for the Defendant
HYZON MOTORS INC v MICHAEL BARTLETT [2024] NZHC 1193 [31 May 2024]
Table of Contents
Introduction [1]
Background [6]
Hyzon’s application for further and better discovery [10] Hyzon’s application for further and better answers to interrogatories [13] Mr Bartlett’s application for further discovery [16]
Legal principles [19]
Further and better discovery [19]
Further and better answers to interrogatories [22]
Analysis [25]
Hyzon’s discovery application [27]
Financial documents of Global NRG [28]
Conclusion in respect of Global NRG financial documents [31]
Emails and electronic communications [34] Conclusion in relation to emails and other electronic communications [42] Specific documents in Schedule 1 [44]
Conclusion in relation to Schedule 1 documents [47]
Hyzon’s application for better answers to interrogatories [49] Category 1: Failure to properly answer questions [51] Category 2: Insufficient grounds for objections to answer questions entirely [54] Hyzon’s interrogatories relating to matters in issue [55]
Hyzon’s interrogatories are necessary [56]
No oppression [61]
Category 3: Evasion of subsequent questions [63]
Conclusions in relation to better answers to interrogatories [65]
Mr Bartlett’s application for particular discovery [66]
Mr Bartlett’s letter of 15 March 2024 [73]
Conclusion in relation to Mr Bartlett’s discovery application [74]
Result [75]
Orders [78]
Introduction
[1] In the substantive proceedings, the plaintiff, Hyzon Motors Inc (Hyzon), alleges that it was misled by the defendant, Mr Michael Bartlett (Mr Bartlett), to purchase shares and options to buy shares in Global NRG H2 Limited (Global NRG H2) of which company Mr Bartlett is sole director.
[2]Hyzon now makes two applications, seeking orders against Mr Bartlett for:
(a)further and better discovery; and
(b)further and better answers to interrogatories.
[3] Mr Bartlett in turn makes an application for orders for particular discovery against Hyzon.
[4] Hyzon designs and produces hydrogen fuel cells that provide zero-emission power for trucks and heavy industry.
[5] Mr Bartlett is a New Zealand resident and a director of a number of associated companies, which he describes as the Global NRG group (Global NRG). This group includes the New Zealand companies, Global NRG H2 and Global NRG Limited (Global NRG NZ).1
Background
[6] On 31 October 2020, Hyzon signed two agreements: one to subscribe and pay for shares in Global NRG H2; and the other giving Hyzon the option to purchase further shares in Global NRG H2. The share subscription agreement was for the purchase of 17,000 shares in two tranches for the total of USD 2,448,000. Under the
1 There are two companies called Global NRG Limited, one incorporated in New Zealand (referred to in this judgment as Global NRG NZ) and the other incorporated in the British Virgin Islands (referred to in this judgment as Global NRG Limited).
share option agreement, Hyzon was granted a right to exercise options to purchase further shares in Global NRG H2 at certain prices, in three tranches.
[7] Hyzon says that these agreements were induced, primarily, by the following representations allegedly made by Mr Bartlett, which are alleged to be false:
(a)Global NRG had waste-to-energy (WTE) technology, experience and know-how to produce electricity from waste, and had developed novel methods for manufacturing biogas (converting mixed plastics to hydrogen) and syngas from waste material (from which hydrogen could be purified) (Global NRG’s IP);
(b)Global NRG’s IP meant it could feasibly produce hydrogen very cheaply using small-to-medium-sized plants called hydrogen “hubs”, allowing it to be sold at the pump for USD 2 per kg; and
(c)Global NRG H2 had an exclusive licence to Global NRG’s IP to achieve hydrogen for USD 2 per kg and, accordingly, Hyzon’s investment into that company secured it an ownership stake in that technology.
[8] Hyzon’s case at trial will be that Mr Bartlett misled Hyzon regarding the value of the components of the Global NRG business, including the Global NRG’s IP and Global NRG H2’s exclusive licence. Hyzon’s claim is brought under the common law tort of deceit, ss 9 and 13 of the Fair Trading Act 1986 and ss 19 and 22 of the Financial Markets Conduct Act 2013.
[9] Mr Bartlett admits that he made representations, but otherwise denies Hyzon’s claims, in particular that the representations were false, that he knew they were false and that he intended Hyzon to act in reliance on them.
Hyzon’s application for further and better discovery
[10] On 17 November 2023, Hyzon filed an application for further and better discovery seeking, in summary, the following:
(a)financial documents relating to the Global NRG companies;
(b)emails and electronic communications; and
(c)specific documents relating to aspects of the Global NRG business as set out in Schedule 1 of the discovery application.
[11]The grounds on which the orders are sought are, in summary, as follows:
(a)Mr Bartlett’s discovery affidavits of 1 September 2023 and 6 November 2023 do not comply with r 8.15 of the HCR as they do not provide sufficient particulars of the steps taken by Mr Bartlett to comply with his discovery obligations.
(b)The documents and classes of documents sought in the application are relevant to the issues in dispute in the proceeding.
(c)There are grounds to believe that the documents and classes of documents sought in the application exist and are, or have been, in the control of Mr Bartlett.
(d)Mr Bartlett has asserted through his solicitors that he deleted potentially relevant documents (all from within the last four years) in the ordinary course of his business, but has not explained in an affidavit the basis upon which those documents were deleted, what document retention policy(ies) he says applies, and what steps (if any) he has taken to retrieve archived and/or deleted documents.
[12]Mr Bartlett opposes this application, in summary, on the following grounds:
(a)He has addressed the issues raised in the discovery application in his affidavits sworn on 1 September 2023, 6 November 2023, and 27 November 2023.
(b)He has carried out keyword searches across all of his emails (including those email addresses referred to at 1(a)(iii)(B) of the
discovery application), all of his electronic documents and all of his deleted and/or archived files.
(c)The issues raised at 1(a)(iii) and in Schedule 1 of the discovery application have previously been addressed in correspondence between the parties.
Hyzon’s application for further and better answers to interrogatories
[13] On 2 February 2024 Hyzon filed an application for further and better answers to interrogatories seeking, in summary, the following orders:
(a)that Mr Bartlett answer within 21 days the interrogatories set out in the notice dated 17 November 2023, as set out in the schedule to the application, providing answers in substance and without evasion, and that he verifies his answers by affidavit; and/or
(b)in the alternative, that Mr Bartlett attend the Auckland High Court to be orally examined.
[14]The grounds on which the orders are sought are, in summary as follows:
(a)Mr Bartlett, in his response to the interrogatories, objected to answering questions 6(c), 6(d), 7, 8, 9, 10(a), 13(b), 13(c), 14(b), 14(c), 15(b), 15(c), 16(b), 16(c), and 17.
(b)Mr Bartlett’s objections to answering those questions are invalid:
(i)He has incorrectly claimed that some interrogatories do not relate to matters in question between the parties. Hyzon says the interrogatories are appropriately framed by reference to the pleadings and are properly made.
(ii)He has objected to answering the interrogatories inconsistently, in particular by answering some questions put to him about Global NRG H2 (such as
whether it has a bank account) while refusing to answer the same or similar questions put to him about Global NRG.
(iii)He has claimed that some of the interrogatories are oppressive but has failed to identify how the questions are oppressive and has provided no proper evidential basis for that assertion.
(c)Mr Bartlett provided a partial response to questions 6(b)(iv)–(v), 7, 10(a), 13(a), 14(a), 15(a), 16(a) and 16(d), and the responses were evasive because the answers are non-responsive and/or do not answer the questions in a specific and substantial manner.
[15]Mr Bartlett opposes the applications on, in summary, the following grounds:
(a)He objects to answering a number of questions in the notice because they do not relate to any matter in question in the proceeding between the parties and/or are seeking to obtain evidence of the facts in issue.
(b)He objects to answering a number of questions in the notice because they are oppressive, and they seek details of the business of Global NRG for a period of over 47 years.
(c)The orders sought by Hyzon are not necessary because his briefs of evidence are due to be served by 20 June 2024 and Hyzon will be able to cross examine him on those questions at trial.
Mr Bartlett’s application for further discovery
[16] On 22 November 2023 Mr Bartlett made an application for particular discovery from Hyzon seeking discovery of the documents listed in the schedule to the application, which are in summary:
(a)internal correspondence, memoranda, board papers, board minutes and other documents of Hyzon and/or Horizon Fuel Cell Technologies Pte
Ltd2 (Horizon) in relation to the decision to acquire the shares in Global NRG H2 (Category A)
(b)internal correspondence, memoranda, board papers and other documents of Hyzon and/or Horizon in relation to financial due diligence to acquire shares in Global NRG H2 (Category B); and
(c)internal correspondence, memoranda, board papers and other documents of Hyzon and/or Horizon in relation to Hyzon’s information requests for investigations about the trading activities Global NRG H2 and the value of Hyzon’s shareholding in Global NRG H2 (Category C).
[17]The grounds on which the documents are sought are, in summary:
(a)The documents are relevant to the issues to be resolved in the proceeding, in particular, did Hyzon act in reliance on the alleged misrepresentations when entering into a transaction to purchase the shares in Global NRG H2, and do the shares in that company have no or minimal value.
(b)There are grounds for believing the documents exist and are, or have been, in the control of Hyzon.
[18] The grounds on which Hyzon opposes the discovery orders sought by Mr Bartlett are, in summary:
(a)Hyzon has carried out reasonable and proportionate search of the relevant documents in accordance with its discovery obligations, including searches for the documents sought in the application.
2 Horizon is the parent company of Hyzon.
(b)In response to Mr Bartlett raising discovery questions, Hyzon has cross- checked its discovery parameters and reconfirmed its belief in reasonableness and proportionality of its searches.
Legal principles
Further and better discovery
[19]Rule 8.19 of the High Court Rules provides:
8.19 Order for particular discovery against party after proceeding commenced
If at any stage of the proceeding it appears to a Judge, from evidence or from the nature or circumstances of the case or from any document filed in the proceeding, that there are grounds for believing that a party has not discovered 1 or more documents or a group of documents that should have been discovered, the Judge may order that party—
(a) to file an affidavit stating—
(i)whether the documents are or have been in the party’s control; and
(ii)if they have been but are no longer in the party’s control, the party’s best knowledge and belief as to when the documents ceased to be in the party’s control and who now has control of them; and
(b) to serve the affidavit on the other party or parties; 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 other party or parties.
[20] The Court will apply a four-stage test in considering an application under r 8.19:3
(a)Are the documents sought relevant, and if so, how important will they be?
(b)Are there grounds for belief that the documents sought exist? This will often be a matter of inference. How strong is that evidence?
3 Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd [2015] NZHC 2760, [2018] NZAR 600 at [14].
(c)Is discovery proportionate, assessing proportionality in accordance with Part 1 of the Discovery Checklist in the High Court Rules?
(d)Weighing and balancing these matters, in the Court’s discretion applying r 8.19, is an order appropriate?
[21] As to the first limb, documents will be discoverable only if they are relevant to the pleaded issues.4 As to the second limb, the party seeking discovery must show some credible objective evidence that the existing affidavit of documents filed is incomplete. It need not prove the sought documents actually exist.5 As to the third limb, the possibility of discovering relevant documents needs to be balanced against the cost of the discovery exercise. Highly relevant documents may justify greater expense.6 The final limb of the test entails a holistic assessment of whether the Court, having regard to the factors considered under the first three limbs, should exercise its discretion to order further discovery.
Further and better answers to interrogatories
[22]Rule 8.34 of the High Court Rules provides:
8.34 Interrogatories by notice
(1)After a statement of defence has been filed, a party who has filed a pleading may file and serve on another party who has filed a pleading a notice requiring that party to answer specified interrogatories relating to any matter in question in the proceeding between the interrogating party and the party served.
(2)The notice may require that the answers be verified even if the interrogating party has not previously required any answers to interrogatories to be verified.
[23] The law on interrogatories is succinctly set out by the Court of Appeal in Todd Pohokura Ltd v Shell Exploration NZ Ltd:7
4 High Court Rules 2016, r 8.7; Intercity Group (NZ) Ltd v Nakedbus NZ Ltd [2013] NZHC 1054 at [15].
5 Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd, above n2, at [10] and [12]; Lighter Quay Residents’ Society Inc v Waterfront Properties (2009) Ltd [2017] NZHC 818 at [16]; McCullagh v Robt Jones Holdings Ltd [2015] NZHC 1462 at [7]; and Robert v Foxton Equities [2014] NZHC 726, [2015] NZAR 1351 at [8].
6 Commerce Commission v Cathay Pacific Airways Ltd [2012] NZHC 726 at [18] and [21].
7 Todd Pohokura Ltd v Shell Exploration NZ Ltd [2009] NZCA 561.
[14] It is appropriate to summarise briefly the nature, purpose and permissible scope of interrogatories. An interrogatory is a question asked before trial for the purpose of eliciting an answer on oath or affirmation which is admissible in evidence at trial. Like all questions, it must be directed towards advancing one side’s case or damaging the other’s case. It must accordingly be relevant to an issue raised on the pleadings or a fact in dispute for determination.
[15] An interrogatory must also, like a question in cross-examination, be precise and unequivocal, and amenable to a direct and meaningful answer from information within the knowledge of or reasonably available to the person required to answer. It must not place unnecessary or burdensome obligations on the interrogated party, or be prolix. And its purpose must not be to search or probe on the speculative basis that an answer may prove relevant (colloquially known as fishing). A question which offends these elements will fall within the general category of oppressiveness.
[16] An interrogatory is an exception to the settled manner of adducing evidence and in particular to a defendant’s right not to call evidence at trial. Accordingly the Court must be satisfied that the interrogatory is necessary where an application to issue interrogatories is opposed: r 8.5 High Court Rules. A material consideration is whether briefs of evidence will be given by the party to be interrogated. Moreover, an interrogatory is not to be confused with a request for further particulars.
[24] As recorded in the passage above, the answer to an interrogatory is admissible in evidence at trial,8 and an interrogatory is an exception to the settled manner of adducing evidence, particularly a defendant’s right not to call evidence at trial.9 The court must therefore be satisfied the order to answer interrogatories is necessary at the time the order is made.10
Analysis
[25]The issues to be determined in this judgment are:
Hyzon’s discovery application
(a)The extent to which orders should be made for discovery by Mr Bartlett of the documents sought in Hyzon’s discovery application? The application relates to three categories of documents:
8 At [14].
9 At [16].
10 At [16]. The equivalent rule under the High Court Rules is r 8.38.
(i)financial records of the Global NRG companies;
(ii)emails/electronic communications between Mr Bartlett and persons with whom he has communicated in his capacity as director of Global NRG (including Hyzon); and
(iii)specific documents sought by Hyzon as set out in Schedule 1 of Hyzon’s application.
Hyzon’s interrogatories application
(b)The extent to which Mr Bartlett should be required to provide further answers to Hyzon’s interrogatories as set out in the application.
Mr Bartlett’s discovery application
(c)The extent to which discovery orders should be made in relation to the documents sought by Mr Bartlett in his discovery application.
[26]I deal with each of these issues in turn.
Hyzon’s discovery application
[27] Mr Trevella, for Hzyon, submits that the documents sought in Hyzon’s application for further discovery from Mr Bartlett are relevant to supporting Hyzon’s claim that: Mr Bartlett made the representations; the representations were untrue; and further, Mr Bartlett knew they were untrue and that Global NRG (and therefore Global NRG H2) is not a “business of substance” and has no value. Mr Trevella submits that the three categories of documents sought by Hyzon are materially important as they relate to these key issues and support its allegations of deceit.
Financial documents of Global NRG
[28] Mr Trevella submits that the financial records relating to the Global NRG companies are relevant to Mr Barlett’s representation that the business had substance and that this representation was false.
[29] Mr Trevella submits that Mr Bartlett appears to accept that these documents exist and are within his control (or the control of the Global NRG companies which he controls), but he objects to disclosing them on the basis they are not relevant.
[30] Mr Cooley, for Mr Bartlett, opposes the discovery of financial statements for the Global NRG companies. He submits as follows:
(a)The financial documents sought are not relevant to the representations as Mr Bartlett did not represent the financial position or performance of Global NRG. Further, Mr Bartlett did not represent that Global NRG had a “business of substance” and Hyzon has not particularised what is meant by the word “substance”.
(b)The representations alleged by Hyzon are based on conduct and statements set out in paragraphs [12] to [17] of the statement of claim. Those statements relate to Global NRG’s experience with building WTE plants; that it had the technology to produce hydrogen; and its intention to produce hydrogen manufacturing plants. Hence the representations are related to NRG’s capability not to its financial position or performance.
(c)Hyzon is a 0.34 per cent shareholder in Global NRG H2, with the option to increase its shareholding to 5 per cent. It does not hold any shares in the other Global NRG companies, and Global NRG H2 is not related company of the other NRG companies. Consequently, the financial position and performance of the other Global NRG companies is unrelated to the financial position and performance of Global NRG H2 and is not relevant or important to the issues to be resolved in the proceedings.
Conclusion in respect of Global NRG financial documents
[31] I am of the view that the financial records sought by Hyzon should be discovered by Mr Bartlett. While Mr Bartlett denies that he made a representation that Global NRG was a "business of substance”, this has been pleaded by Hyzon and is,
therefore, a material issue to be resolved in the proceedings. In the hearing, Mr Trevella explained that Hyzon’s reference to a “business of substance” meant that, in Hyzon’s view, the Global NRG companies were a “real business” with employees, assets and intellectual property. In my opinion, the financial records of the Global NRG companies are relevant to the issue of whether or not the Global NRG group was a “business of substance”.
[32] As to the issue of whether Mr Bartlett controlled the Global NRG companies (other than Global NRG H2), Mr Cooley argued that Global NRG H2 is not a related company of the other Global NRG group of companies. Hence documents related to those companies are irrelevant to the proceedings and not in Mr Bartlett’s control. I do not accept this contention. Firstly, it is contradicted by Global NRG’s own documents.11 Secondly, Mr Trevella pointed to the fact that Mr Bartlett has represented himself as the “President” of Global NRG (which is defined to include Global NRG H2) and consequently he should be able to procure the necessary documents from the other companies within the Global NRG group.
[33] In many places in the material sent by Mr Bartlett to Hyzon’s representatives, Mr Bartlett refers to activities of various companies in the Global NRG group and refers to assets (for example, patents, trademarks, and licences) held by Global NRG. These are statements which are all relevant, in my opinion, to the issue of whether Global NRG is a “business of substance”. Further, I accept Mr Trevella’s submission that for the purposes of the “business of substance” issue there is no real distinction to be drawn between Global NRG H2 and Global NRG. These conclusions also lead me to the view that the documents for which Hyzon seeks further discovery, (which may be in the control of Global NRG), should be able to be obtained by Mt Bartlett. If not, then a proper explanation as to why not must be provided.
Emails and electronic communications
[34] Mr Trevella submits that these documents are relevant to whether Global NRG is a “business of substance”; to the issues of what representations were made; and to
11 Bundle of documents, Vol 2, page 200.
whether Mr Bartlett knew the representations were untrue and were calculated to deceive Hyzon.
[35] Mr Barlett has disclosed a limited selection of emails. However, Mr Trevella submits that while Mr Bartlett has acknowledged that he has a “main computer” he has not expressly stated he has searched it for documents. Further, while Mr Bartlett says he has not used a laptop, he references using a laptop in contemporaneous text messages.
[36] Mr Trevella submits that it appears from the second and third affidavits of documents, Mr Bartlett’s search was limited to his online email accounts using a reasonably narrow selection of key words, and that the search was unsuccessful as so few emails were identified. Mr Trevella notes that in the third affidavit Mr Bartlett claims (by way of explanation) that he deletes his emails from his webmail immediately after reading or responding to the email. However, Mr Bartlett does not explain if any backup (for example, on his “main computer”) is retained, and nor does he explain why he was able to obtain some emails for disclosure but not others.
[37] As to electronic messages (for example, SMS/WhatsApp), Mr Trevella notes that Mr Bartlett claims to have wiped his phone in June 2023. This date was after these proceedings had been issued; after he was put on notice for his obligations to retain all records; and two months before discovery was due. Mr Trevella also notes that Mr Bartlett claims in his third affidavit that his “IT person” has told him that the WhatsApp messages could not be recovered. However, he has provided no affidavit from the “IT person” explaining why the messages could not be obtained by Mr Bartlett accessing his WhatsApp account on his new phone or on his computer. Further, Mr Bartlett has provided no explanation for why he appears to have deleted the SMS messages and WhatsApp messages in breach of his discovery obligations.
[38] Mr Trevella contrasts the approximately 90 emails discovered by Mr Bartlett with the approximately 2,000 emails discovered by Hyzon, inviting the Court to draw the inference that Mr Bartlett’s discovery has been inadequate.
[39] Mr Cooley submits that Mr Bartlett has already supplied three sworn affidavits confirming he has provided all relevant emails and electronic communications in his control and explaining the steps he has taken to locate and retrieve the relevant documents. He claims that most of the communications are between Mr Bartlett and employees or representatives of Hyzon, and consequently if Hyzon considers there are further emails between those parties, then they should be within the control of the employees and representatives of Hyzon and will have been discovered by Hyzon.
[40] Mr Cooley argues that Hyzon has been unable to specify the particular relevant (to the alleged representations) emails or electronic communications that Mr Bartlett has failed to discover. He submits that the documents containing the alleged representations are already known to Hyzon and have been particularised in the statement of claim. The fact that Mr Bartlett has not discovered as many emails and electronic communications as Hyzone does not provide grounds for the belief that other documents exist in the control of Mr Bartlett.
[41] Finally, Mr Cooley notes that Mr Bartlett has explained: his practice of deleting emails as soon as they are read or responded to; how his Motorola mobile phone was wiped in June 2023; and his attempts to retrieve the WhatsApp messages between him and Hyzon representatives.
Conclusion in relation to emails and other electronic communications
[42] I am of the view that discovery in relation to emails and other electronic communications should be undertaken by Mr Bartlett for the following reasons:
(a)There appear to be other computers (“main computer”/laptop) that Mr Bartlett has referred to that may not have been searched.
(b)The search terms used in some cases appear to be unduly narrow.
(c)Mr Bartlett has not explained why (despite his policy of deleting emails after reading or responding to them) he has been able to retrieve some emails but not others, and nor has he explained what steps have been taken to retrieve deleted emails.
(d)Mr Bartlett has not explained why the WhatsApp messages cannot be retrieved from his WhatsApp account, and if they cannot be obtained by accessing the account from another device, what other steps can be taken to obtain them.
[43] Accordingly, I am of the opinion that a discovery order should be made requiring Mr Bartlett to:
(a)search any “main computer” and any laptop he possesses, using reasonable search terms as agreed on with Hyzon;
(b)take such steps as are technically feasible and reasonable to retrieve the WhatsApp messages which may have been deleted from his WhatsApp account on occasion of his mobile phone being wiped;
(c)take such steps as are technically feasible and reasonable to retrieve emails he has deleted as a result of his practice of deleting emails upon reading or responding to them (whether from backup or elsewhere); and
(d)if any of the steps above are not able to be taken or if such steps are taken but do not produce the emails and electronic messages sought, provide a full explanation of why not.
Specific documents in Schedule 1
[44] Attached to Hyzon’s application is a schedule of the specific documents requested under this category. Mr Trevella submits the reasons that these documents are believed to exist and are within the control of Mr Bartlett or Global NRG (and are therefore within Mr Bartlett’s control or can be requested by him) are set out in respect of each document in the schedule. He claims it can be inferred that these documents are to be found on Mr Bartlett’s (or Global NRG’s) “main computer” yet Mr Bartlett does not appear to have conducted a search for the relevant documents on his “main computer” nor asked any of the companies in the Global NRG group to provide him with them.
[45] Mr Cooley argues that the categories of documents in the schedule relate to the business affairs of Global NRG Limited (being the British Virgin Islands company) and Hyzon has no evidence that these documents exist or are in Mr Bartlett’s control. Mr Cooley submits Mr Bartlett does not control any documents that relate to the business affairs of Global NRG Limited and nor does he have the right to possess, inspect or copy the documents (if they exist).
[46] Mr Cooley maintains that in any event, the categories of documents sought in the schedule are either not relevant or are not important to the issues to be resolved in the proceedings. Further, given the volume of the categories set out in schedule, it would be disproportionate to order Mr Bartlett to provide discovery of those documents when he is currently preparing briefs of evidence due to be filed and served by June 2024.
Conclusion in relation to Schedule 1 documents
[47] I am of the view that the documents specified in Schedule 1 of the application should be discovered by Mr Bartlett as they are relevant to the pleaded issue of whether the Global NRG group is a “business of substance” possessing the capabilities of which Hyzon alleges Mr Bartlett made representation. The specified documents relate to:
(a)specific assets which Mr Bartlett has referred to as being owned by Global NRG, such as patents, trademarks and licences;
(b)substantial projects which have been undertaken by Global NRG, such as the WTE plants for Pratt Industries and the “big digestor” for Moxey Farms; and
(c)substantial projects or investigations which are either under way or have been undertaken by Global NRG in the past.
[48] In addition to the above reasons, attached as Schedule 1 to this judgment is a copy of the schedule to Hyzon’s application in which I have set out further specific
reasons why the documents should be discovered in relation to various categories of the documents sought by Hyzon.
Hyzon’s application for better answers to interrogatories
[49] In regard to interrogatories, Mr Trevella submits that the deficient answers which require better answers fall into three categories:
(i) answers where Mr Bartlett has failed to properly respond to the question posed by the interrogatory (Category 1);
(ii) answers where Mr Bartlett has objected to answering the question entirely on one or more grounds (Category 2); and
(iii) answers where Mr Bartlett has evaded answering the question by answering the preceding question in a way which dispenses with the need to address the subsequent issue in a substantive way (Category 3).
[50]I deal with each of these categories in turn.
Category 1: Failure to properly answer questions
[51] Mr Trevella submits that while Mr Bartlett purports to respond to several questions by referencing documents or his response to Hyzon’s request for further particulars dated 28 July 2023, these responses are inadequate. This category applies to further answers requested to questions 6(b)(iv) and (v), 7, 10(a), 13(a), 15(a), 16(a) and 16(d).
[52] In response Mr Cooley argues that Mr Bartlett has specifically and substantially answered each of the questions in this category either by referring to documents he has already provided to Hyzon, or in his response to Hyzon’s request for further discovery. Conclusion in relation to Category 1
[53] I am of the view that Mr Bartlett should provide further answers to interrogatories referred to in Category 1. These interrogatories are related to the question of whether Global NRG is a “business of substance”, and also to Mr Barlett’s
representations of Global NRG’s capabilities as referred to in the statement of claim at paragraphs [12] and [16]– [18].
Category 2: Insufficient grounds for objections to answer questions entirely
[54] Mr Trevella notes that Mr Bartlett has objected to answering several of Hyzon’s interrogatories on the basis that: they do not relate to matters in issue in these proceedings or are not necessary; they seek to obtain evidence of facts; and/or because they are oppressive. He submits these objections are not well-founded. This category applies to answers to questions 6(c), 6(d), 7, 8, 9, 13(b), 13(c), 14, 15(b), 15(c), 16(b), 16(c) and 17.
Hyzon’s interrogatories relating to matters in issue
[55] Mr Trevella submits that one of the key issues disclosed by the pleadings is whether Mr Bartlett’s representations were false and misleading, and whether Mr Bartlett knew those representations were false and misleading. He argues that Hyzon is constrained in the methods by which it is able to present its case due to the nature of the allegations made relating to Mr Bartlett’s state of mind and further, because Mr Bartlett has failed to provide discovery of Global NRG’s financial documents, has not properly searched for relevant documents, and appears to have destroyed documents. In order to support Hyzon’s case in these circumstances, Hyzon has sought that Mr Bartlett answer specific and focused interrogatories regarding Global NRG’s business, aimed at contradicting his pleaded position.12 Mr Trevalla submits that it will contradict Mr Bartlett’s anticipated defence if his responses directly or indirectly acknowledge that Global NRG and Global NRG H2 are merely shell companies and neither of them have any “business of substance”.
Hyzon’s interrogatories are necessary
[56] Mr Trevella cites the decision in Tourplan Pacific Limited v Australian Tours Management Pty Limited,13 with reference to making the distinction between a
12 Mr Barlett pleads that the representations he allegedly made were not false and misleading and he did not know they were false or misleading.
13 Tourplan Pacific Limited v Australian Tours Management Property Limited [2017] NZHC 2210 at [44].
legitimate purpose of interrogatories (being to obtain an admission as to facts which will support the case of the interrogating party or contradict the case of the party interrogated) as opposed to interrogatories which ask for what amounts to evidence of the facts in dispute. He acknowledges Courtney J’s comments in Tourplan Pacific Limited that these two concepts are “closely related” and submits the test is one of whether, in all the circumstances, the interrogatory is “necessary” in the sense that the question posed is aimed at material facts and the answer is likely to be probative.
[57] Mr Trevella maintains that the questions posed by Hyzon are appropriate in the circumstances when, as in Tourplan, there is a paucity of information available about Global NRG and the questions are directed to eliciting answers that are directly relevant to the primary facts of whether Global NRG is a not a “business of substance”, and whether Mr Bartlett knew that and deliberately misled Hyzon.
[58] In response, Mr Cooley argues that Mr Bartlett’s objections to answering the interrogatories are valid. He submits that the interrogatories relate to the alleged representations and are seeking to obtain evidence of the facts in issue, namely, did Global NRG have a “business of substance”? As an example, Mr Cooley submits that the question whether “Global NRG has ever had a bank account”14 does not establish a material fact but seeks to elicit evidence of a fact.
[59] Mr Cooley also maintains that an order to answer interrogatories should only be made if it is necessary at the time of the order. He submits that an order is not necessary because Mr Bartlett is due to file his briefs of evidence on 20 June 2024 and Hyzon will be able to cross-examine on the questions at trial.
[60] In response to the issue of timing raised by Mr Cooley, Mr Trevella submits that this is not a sufficient reason to deny Hyzon the opportunity to put its interrogatories to Mr Bartlett:
14 Application for the defendant to provide further and better answers to interrogatories: question 6(c) of the Schedule.
(a)Firstly, parties are entitled to seek to have answers to interrogatories they consider best address their pleaded claims and ought not to be forced to wait for evidence that might (or might not) answer them.
(b)Secondly, merely because Mr Bartlett may give evidence does not make the interrogatory unnecessary, nor does the fact that the interrogatory may be asked in cross-examination. It is not illegitimate for a party to try to present the strongest possible case and to, within reason, seek to prove it using all material and the procedures available. Additionally, in the context of a deceit claim, interrogatories take on particular importance:
(i)where material information about relevant facts is solely within the interrogated party’s knowledge; and
(ii)where there is a paucity of disclosure because the interrogated party has failed to comply with their disclosure obligations and appears to have destroyed relevant evidence.
Accordingly, Mr Trevella submits that the interrogatories provide an important mechanism for Hyzon to obtain admissions to support its case.
(c)Thirdly, in respect of the timing of the evidence, at paragraph [49] of his submissions, Mr Trevella sets out the timetable in respect of when the interrogatories were served on Mr Bartlett and when replies were provided. He submits that in circumstances where Mr Bartlett did not comply with the timetable for responding to interrogatories and served his response more than seven weeks late, Mr Bartlett should not be able to rely on the timing of the application to resist an order to answer interrogatories.
No oppression
[61] In relation to whether or not the interrogatories are oppressive to Mr Bartlett, Mr Trevella submits that it is insufficient for a party to merely assert an interrogatory is oppressive. The party claiming oppression is required to lay an adequate evidential foundation. He argues that Mr Bartlett’s claims that some of the questions are oppressive because they seek details about the business of Global NRG lack credible foundation, as Mr Bartlett has not substantiated his assertion that answering the questions properly put to him would be oppressive.
[62] Mr Cooley responds on this point, submitting that Mr Bartlett objects to answering on the basis of oppression as the interrogatories seek details of the business of Global NRG for a period of over 47 years and cites as examples interrogatory questions 7(b), 9(a) to 9(d), and 15(b) and (c).
Category 3: Evasion of subsequent questions
[63] This category relates to Mr Bartlett’s answer to question 6 of the interrogatories regarding whether Global NRG employed any staff to install microgrids. Mr Bartlett’s response was that the microgrids are installed by independent installers. The question was relevant to a statement by Mr Bartlett to Hyzon in an email dated 9 July 2019 that “we presently install at an average of 6000 new microgrids a month around the world, but could easily double this number, we are just watching new technologies in the pipeline.”15 Hyzon rephrased the question to be applicable to the microgrids being installed by contractors, but Mr Bartlett has not responded.
[64] Mr Cooley submits that the question, as rephrased and in its original form, does not relate to any matter in question in the proceeding, and/or is seeking to obtain evidence of facts in issue, and/or is oppressive because it seeks details of the business of Global NRG over several years in relation to the installation of microgrids in a number of countries.
15 Affidavit of Tylah Hunt dated 2 February 2024: Exhibit TH-C.
Conclusions in relation to better answers to interrogatories
[65] I am of the view that Mr Bartlett should provide better answers to the interrogatories. In addition to the above reasons, attached as Schedule 2 to this judgment, is a copy of the schedule to Hyzon’s application in which I have set out the result in relation to each of the interrogatories listed.
Mr Bartlett’s application for particular discovery
[66] Mr Bartlett has made an application for particular discovery from Hyzon for the three categories of documents (A, B and C) as set out at paragraph [16].
[67] Mr Cooley submits that the documents sought under Mr Bartlett’s application are relevant to the issues to be resolved in the proceeding, in particular, whether Hyzon acted in reliance on the alleged representations when entering into the transactions to purchase the shares in Global NRG H2, and if the shares in Global NRG H2 have no, or minimal, value.
[68] Mr Cooley submits that there are grounds to believe the documents exist. He points to email correspondence which contains references made to information that would need to be provided to the shareholders and Board of Directors of Hyzon and Horizon (the parent company of Hyzon) in relation to the investment in Global NRG H2 and which also refers to the requirement for due diligence to be completed.16 He submits however, that despite these references, Hyzon’s discovery does not include any board papers, board minutes, memoranda, or other documents in relation to the decision to acquire the shares in Global NRG H2 nor the due diligence that was completed. Further, Hyzon’s discovery does not include documents in relation to Hyzon’s allegation that Global NRG H2 has no “business of substance” and Hyzon’s investment in Global NRG H2 consequently has no value.
[69]Mr Trevalla submits that Hyzon opposes Mr Bartlett’s application because:
(a)Mr Bartlett has failed to establish grounds for the belief that the documents sought exist;
16 Affidavit of Lisa Walsh dated 22 November 2023 at [13]–[15] and Exhibit E.
(b)Hyzon’s evidence, which was served on 28 March 2024, corroborates that there is not likely to be further documents to be discovered within the categories; and
(c)requiring further searches to be conducted by Hyzon in these circumstances would not be proportionate or in the interests of justice.
[70] At paragraph [10] of his submissions, Mr Trevella sets out the search process undertaken by Hyzon and submits that Mr Bartlett has not identified any specific basis on which the search process could be regarded as deficient. He maintains that Hyzon has already disclosed a large number of internal emails and attachments relating to its decision to acquire the shares in Global NRG H2 (Category A), as well as its due diligence before acquisition of the shares (Category B) and information and requests into Global NRG H2’s trading activities and the value of Global NRG H2 before the purchase (Category C).
[71] Mr Trevella also points to Hyzon’s evidence served on 28 March 2024 which includes:
(a)a statement from Mr Mark Gordon, a former director and CFO of Hyzon, in which he explains concerns with the proposed investment in Global NRG H2 and how he voiced those concerns internally;
(b)a witness statement from Mr John Edgley, the managing director of Hyzon Motors Australia Pty Limited, in which he provides an overview of the relevant steps taken by Hyzon in its investment into Global NRG H2; and
(c)an expert witness statement from Mr Shaun Hayward, setting out his opinion that, at the time of the investment, the value of the Global NRG H2 shares was zero.
[72] Mr Trevella submits the signed statements of Mr Gordon and Mr Edgley do not suggest there are further board minutes, memoranda et cetera, falling under the categories that exist and have not been disclosed.
Mr Bartlett’s letter of 15 March 2024
[73] Regarding Mr Bartlett’s further letter of 15 March 2024 relating to 45 emails he had subsequently received from Mr Craig Knight (former CEO of Hyzon) but which had not been discovered by Hyzon, Mr Trevella submits that: 38 of the emails post-date the events in question and are not relevant; four are communications between Mr Barlett and third parties (not Hyzon) and therefore do not fall within categories A, B or C; and three emails that are relevant and have resulted in Hyzon carrying out an amended search.
Conclusion in relation to Mr Bartlett’s discovery application
[74] I am of the view that the orders for discovery of particular documents sought by Mr Bartlett should be granted. The reasons for this are:
(a)In my view the documents sought in categories A, B and C are relevant to the extent to which Hyzon may have relied on the alleged representations made by Mr Bartlett. Board papers, board minutes, memoranda and due diligence reports which may have been produced by Hyzon are relevant to the degree to which the alleged misrepresentations may have induced Hyzon to invest in Global NRG H2 as opposed to Hyzon satisfying itself through due diligence to make the investment;
(b)There are sufficient indications, in particular Annexure E to the affidavit of Ms Walsh sworn on 22 November 2023, that board documentation or due diligence reports appear to have been part of Horizon’s decision-making processes to approve the investment;
(c)Further searches in respect of categories A, B and C are not disproportionate.
Result
[75] As a result of the conclusions I have reached at paragraphs [31] to [33], [42], and [46] to [47], I am of the view that Hyzon’s application for better discovery should be granted. Schedule 1 attached to this judgment sets out the result in respect of the specific documents sought in Hyzon’s application.
[76] As a result of the conclusions I have reached at paragraph [64], I am of the view that Hyzon’s application for better answers to interrogatories should be granted, with the results as set out in Schedule 2 attached to this judgment.
[77] As a result of the conclusions I have reached at [73], I am of the view that Mr Bartlett’s application for particular discovery on Hyzon should be granted.
Orders
[78]I make the following orders:
(a)Hyzon’s application for discovery is granted;
(b)Hyzon’s application for better answers to interrogatories is granted; and
(c)Mr Bartlett’s application for discovery is granted.
[79] Each party has been successful in their applications, so costs should follow the event. Counsel are directed to endeavour to agree costs and failing agreement being reached within a period of 20 working days of the date of this judgment, counsel for Hyzon will file a memorandum as to costs (not to exceed five pages) within five working days after the expiry of the 20 working day period, and counsel for Mr Bartlett will file a memorandum (not to exceed five pages) in response within five working days of receipt of counsel for Hyzon’s memorandum. A decision as to costs will then be made on the papers.
Associate Judge Taylor
SCHEDULE 1
NB: References are to volumes and page numbers in the Bundle of Documents
Hyzon’s document request Result (a) Documents in relation to any patents held by Global NRG, including:
(i) Global NRG’s “patented WTE (Waste to Energy) technologies” referred to at VOL2-260 at 261. See also at VOL2-221,
VOL2-252 at 253, VOL2-266 at 269, and VOL2-283 at 284;
and
(ii) Global NRG’s “patented
ammonium-to-ammonia removal system” referred to by Mr Bartlett at VOL2-185.
(b) Documents in relation to any
registered trademarks held by Global NRG, including but not limited to the “Tuffcrete” registered trademark referred to at VOL2-241 at 249.
(See also at:
VOL2–283 at 288,
VOL2-295 at 301,
VOL2–307 at 312,
VOL2–319 at 324,VOL2–330 at 335,
VOL2–341 at 347,
VOL2–374 at 375).(c) Documents in relation to the licensing arrangements that Mr Bartlett says
(a) As specific reference to these patents has been made by Mr Bartlett in communications with Hyzon, these documents should be discovered. In my view, they are relevant to the pleaded issue as to whether Global NRG is a “business of substance”. Any intellectual property held by the Global NRG group is relevant to this issue.
As I have set out at paragraphs [32] and
[33] of the judgment, I do not accept Mr Bartlett’s contention that documents which are relevant and are in the control of Global NRG companies other than Global NRG H2 are not in the control of Mr Bartlett and cannot be called for. Consequently, in my view these documents should be discovered.
(b) These documents should be discovered for the same reasons as set out in (a) above.
(c) These documents should be discovered for the same reasons as set out in (a).
were in place in relation to the “Tuffcrete” product.
(See at:
VOL2–241 at 249,
VOL2–283 at 288,VOL2–295 at 301,
VOL2–307 at 312,VOL2–319 at 324,
VOL2–330 at 335,
VOL2–341 at 347,
VOL2–374 at 375).(d) Documents in relation to Global NRG’s “team of researchers” and/or
relationship with “a university” as
referred to at VOL2–241 at 248.(e) Documents in relation to Global NRG having “buil[t] all of Anthony Pratt’s WTE plants for his paper and cardboard plants in USA”, as stated by Mr Bartlett at VOL2–069 at 070.
(f) Documents in relation to Global NRG owning the “Dynamic Fertilizer” brand, as referred to at VOL2–283 at 289,
(See also at:
VOL2–181, VOL2–185, VOL2–186 at 187,
VOL2–295 at 301,
VOL2–307 at 312,
VOL2–319 at 324,
VOL2–330 at 335,VOL2–341 at 346).
(g) Documents in relation to Global NRG’s funding arrangements, including but not limited to the “internal and private equity” funding referred to at VOL2– 260 at 264.
(h) Documents in relation to Global NRG having built the “big digester” for
(d) These documents should be discovered for the same reasons as set out in (a).
(e) These documents should be discovered for the same reasons as set out in (a). It is implausible that Global NRG could have built substantial plant without there being any documentation in either Mr Bartlett’s orGlobal NRG’s possession or control.
(f) These documents should be discovered for the reasons set out in (a).
(g) These documents should be discovered for the reasons set out in (a).
(h) These documents should be discovered for the reasons set out in (a).
Moxey Farms, as referred to at VOL2– 212.
(i) Documents in relation to the site that Global NRG had “on offer in
Braidwood”, as referred to by Mr Bartlett at VOL2–212.
(j) Documents in relation to the green hydrogen hubs that Mr Bartlett says
Global NRG has built or been building, including but not limited to the
following hubs referred to by
Mr Bartlett at VOL2–218 at 219:(i) three green hydrogen hubs in Australia;
(ii) seven green hydrogen hubs in California;
(iii) two green hydrogen hubs in the Netherlands; and
(iv) other hubs in Germany, Japan, and South Korea.
(k) Documents in relation to the “substantial amount of time and money” that Global NRG spent “researching Gatton as part of its
decentralised green energy plan a few years back” (as referred to at VOL2– 239).
As with the documents referred to at paragraph (e), it is implausible that Global NRG could have built substantial plant without their being any documentation in either Mr Bartlett’s or Global NRG’s possession or control.
(i) These documents should be discovered for the reasons set out in (a). If an offer to purchase a property had been made, it is implausible that no documentation (be it either internal documentation of Global NRG or the offer made to the potential vendor of the property) exists detailing the offer.
(j) These documents should be discovered for the reasons set out in (a).
The description given by Mr Bartlett in the documents referred to by Hyzon appears more definitive than “preliminary work” as set out in Mr Bartlett’s response as to why no documents have been provided.
(see VOL2-219).
(k) These documents should be discovered for the reasons set out in (a). Mr Bartlett has presented the investigation into Gatton as being a substantial project (VOL2-239) and it is implausible that there are no documents available. If not, then a reasonable explanation should be provided as to why there are no such
documents available.
SCHEDULE 2
Category 1 - Failure to properly answer questions. Category 2 - Insufficient objections to answer.
Category 3 - Evasion of subsequent questions.
INTERROGATORY
CATEGORY AND RESULT
6. In relation to the defendant’s admissions at paragraph 8 of the statement of defence:
(a) …
(b) If the defendant’s answer to 6(a) is ‘yes’:
…
(iv) Did Global NRG employ [engage] any staff [contractors] to install the new microgrids?
(v) If the defendant’s answer to 6(b)(iv) is ‘yes’, then in respect of each staff
member [contractor]:
(A) What is their full legal name?
(B) What was their role?
(C) What was the start date of their employment [engagement]?
(D) (If applicable) what was the end date of their employment [engagement]?
(E) What was their salary (or any other compensation)?
(F) In what country were they based?
(c) Has Global NRG ever had a bank account?
(d) If the defendant’s answer to 6(c) is ‘yes’, then in respect of each bank account:
(i) What is the bank account number?
(ii) What is the name and branch of the bank that the bank account is held with?
Category 1/Category 3
(b) (iv) and (v) To be answered
Category 2
(c) To be answered.
Category 2
(d) To be answered.
(iii) When was the bank account opened?
(iv) (If applicable) when was the bank account closed?
7. In relation to the defendant's admissions at paragraphs 16(a)–16(d) of the statement of defence:
(a) What was the location, including the street address, of each of the plants that had been built or constructed by Global NRG?
(b) For each of those plants:
(i) What was the full legal name of the
person(s) or entity(ies) who Global NRG constructed the plant for?
(ii) Did Global NRG enter into an
agreement(s) to construct the plant?
(iii) If the defendant's answer to 7(b)(ii) is 'yes':
(A) Who were the parties to that agreement(s)?
(B) On what date did the parties execute the agreement?
(iv) On what date did Global NRG commence construction of the plant?
(v) On what date did Global NRG complete construction of the plant?
(vi) Did Global NRG receive any payment or consideration for its construction of the plant?
(vii) If the defendant's answer to 7(b)(vi) is 'yes'
(A) What was the amount of the payment or consideration that Global NRG received?
(B) On what date(s) did Global NRG receive that payment or consideration?
Category 1/Category 2
(a) To be answered
(b) To be answered.
8. ln relation to the defendant's admission at paragraph 17(a) of the statement of defence:
(a) How did Global NRG Inc and Sealaska Energy
Inc fund the "multi-billion dollar construction of renewable energy hubs" that they were
"undertaking" across America?
(b) ln relation to each of those hubs:
(i) Did Global NRG Inc and Sealaska Energy lnc construct any of the hubs?
(ii) If the defendant's answer to 8(b)(i) is 'yes', then in respect of each hub:
(A) What was the full legal name of the person(s) or entity(ies) who Global NRG Inc and Sealaska Energy Inc constructed the hub for?
(B) What was the location, including the street address, of the hub?
(C) Did Global NRG Inc and Sealaska Energy Inc enter into agreement(s) in relation to the construction of the hub?
(D) If the defendant's answer to 8(b)(ii)(C) is 'yes', then in respect of each agreement:
1. Who were the parties to the agreement(s)?
2. On what date did the parties execute the agreement?
(E) On what date did Global NRG Inc and Sealaska Energy Inc commence
construction of the hub?
Category 2
(a) To be answered.
(b) To be answered.
(F) On what date did Global NRG Inc and Sealaska Energy Inc complete
construction of the hub?
(G) Did Global NRG Inc receive any payment or consideration for its construction of the hub?
(H) If the defendant's answer to 8(b)(ii)(G) is 'yes'
1. What was the amount of the payment or consideration that Global NRG Inc received?
2. On what date(s) did Global NRG Inc receive that payment or consideration?
(iii) Did Global NRG and Sealaska Energy Inc provide funding to other individual(s) or entity(ies) to construct the hubs?
(iv) If the defendant's answer to 8(b)(iii) is 'yes':
(A) What was the full legal name of the person(s) or entity(ies) who Global NRG Inc and Sealaska Energy Inc provided funding to?
(B) What was the location, including the street address, of the hub?
(C) Did Global NRG Inc and Sealaska Energy Inc enter into agreement(s) in relation to their funding of the hub?
(D) If the defendant's answer to 8(b)(iv)(C) is 'yes', then in respect of each agreement:
1. Who were the parties to the agreement(s)?
2. On what date did the parties execute the agreement?
(E) On what date(s) did Global NRG Inc and Sealaska Energy Inc provide their funding?
(F) What was the amount(s) of funding provided by Global NRG Inc?
9. ln relation to paragraph 17(c)(i) of the statement of defence:
(a) What is full legal name(s) of each "offtake partner” who Global NRG had partnered with before 18 June 2020 in relation to the
construction of a WTE plant?
(b) ln relation to each “offtake partner” referred to in the defendant's response to 9(a) above;
(i) When did Global NRG enter into the partnership?
(ii) Did Global NRG and the "offtake partner" enter into any agreement(s) in relation to the construction of a WTE plant?
(iii) If the defendant's answer to 9(b)(ii) is 'yes'
(A) Who were the parties to that agreement(s)?
(B) On what date did the parties execute the agreement?
(iv) Were any WTE plants constructed in connection with the partnership(s)?
(v) If the defendant's answer to 9(b)(iv) is 'yes', then in respect of each WTE plant:
(A) What was the location, including the street address, of the WTE plant?
(B) On what date did construction of the WTE plant commence?
(C) On what date was construction of the WTE plant completed?
(c) What is the name of each municipality that
Global NRG had partnered with before 18 June
Category 2
(a) To be answered.
(b) To be answered.
(c) To be answered.
2020 in relation to the construction of a WTE plant? (d) ln relation to each municipality referred to in the defendant's response to 9(c) above:
(d) To be answered.
(i) Did Global NRG and the municipality
enter into any agreement(s) in relation to the construction of a WTE plant?
(ii) If the defendant's answer to 9(d)(i) is 'yes'
(A) Who were the parties to that agreement(s)?
(B) On what date did the parties execute the agreement?
(iii) Were any WTE plants constructed in connection with any of Global NRG’s agreement(s) with a municipality?
(iv) If the defendant’s answer to 9(d)(iii) is 'yes':
(A) What was the location, including the street address, of the WTE plant?
(B) On what date did construction of the WTE plant commence?
(C) On what date was construction of the WTE plant completed?
10. In relation to paragraph 17(c)(ii) of the statement of defence:
(a) What was the location, including the street address, of each of the 77 hubs that were being planned across the USA?
…
Category 1
(a) To be answered.
…
13. In relation to the admission at paragraph 18(a)(iii) of the statement of defence that Global NRG “had diversified waste and renewable energy technologies”,
at the time the defendant made the admitted representation(s): (a) What diversified waste and renewable energy technologies did Global NRG have?
Category 1
(a) To be answered.
(b) Did Global NRG have a legally enforceable interest and/or proprietary right(s) or
entitlement(s) in any of its diversified waste and renewable energy technologies?
Category 2
(b) To be answered.
Category 2
(c) To be answered.
(c) lf the defendant's answer to 13(b) is 'yes', then
in respect of each diversified waste and
renewable energy technology, what was the nature of Global NRG's legally enforceable
interest and/or proprietary right?14. In relation to the admission at paragraph 18(b) of the statement of defence that Global NRG "had the technology to produce hydrogen", at the time the defendant made the admitted representation(s):
(a) What technology did Global NRG have to produce hydrogen?
Category 2
(a) To be answered.
(b) Did Global NRG have a legally enforceable interest and/or proprietary right(s) or
entitlement(s) in any of the technology it had to produce hydrogen?
(b) To be answered.
(c) If the answer to 14(b) is 'yes', what was the nature of Global NRG's legally enforceable interest and/or proprietary right?
(c) To be answered.
15. ln relation to the admission at paragraph 18(c) of the statement of defence that Global NRG "had
experience with building waste to energy plants", at the time the defendant made the admitted representation(s):
(a) What experience did Global NRG have with building waste to energy plants?
Category 1
(a) To be answered.
(b) Did that experience include Global NRG
playing a part in the construction of a waste to energy plant?
Category 2
(b) To be answered.
(c) To be answered. (c) If the defendant’s answer to 15(b) is ‘yes’, then
in respect of each waste to energy plant:
(i) What was Global NRG’s role in the construction of the plant? (ii) What was the location, including the street address, of the plant?
(iii) What was the full legal name of the
person(s) or entity(ies) who Global NRG constructed the plant for?
(iv) Did Global NRG enter into an
agreement(s) to construct the plant?
(v) If the defendant’s answer to 15(c)(iv) is ‘yes’:
(A) Who were the parties to that agreement(s)?
(B) On what date did the parties execute the agreement(s)?
(vi) On what date was construction of the plant commenced?
(vii) What was the date of completion of the plant?
16. In relation to the defendant’s admission at paragraph 20(b) of the statement of defence:
(a) What was the “hydrogen from waste” technology that Global NRG H2 Limited (Global NRG H2) was looking to deploy?
Category 1
(a) To be answered.
(b) Did Global NRG H2 Limited have a legally enforceable interest and/or proprietary
right(s) or entitlement(s) in that technology?
Category 2
(b) To be answered.
(c) lf the defendant's answer to 16(b) is 'yes', what was the nature of Global NRG H2’s
legally enforceable interest(s) and/or proprietary right(s) in that technology?
Category 2
(c) To be answered.
(d) What were the names of each of the “other countries” that Global NRG H2 was looking to deploy its hydrogen from waste technology in?
…
Category 1
(d) To be answered.
17. In relation to the admission at paragraph 27(c) of the statement of defence that Global NRG H2 had the resources and expertise to provide seed capital to
Hydrogen Hub companies, before 30 October 2020:
(a) What resources did Global NRG H2 have to provide such seed capital?
(b) Did Global NRG H2 have at its disposal any funding? If so,
(i) Did Global NRG H2 receive any funds from investors?
(ii) If the defendant’s answer to 17(b)(i) is
‘yes’, then in respect of each investment:
(A) What is the full legal name(s) of the investor(s)?
(B) What amount(s) did the investor provide to Global NRG H2?
(C) When did the investor provide those amount(s) to Global NRG H2?
(iii) Did Global NRG H2 receive funding from any lender(s) or bank(s)?
(iv) If the defendant’s answer to 16(b)(iii) ‘yes’, then in respect of each funder:
(A) What is the full legal name(s) of the lender(s) or bank(s) who provided funding to Global NRG H2?
(B) What amount(s) did the funder provide to Global NRG H2?
(C) When did the funder provide those amount(s) to Global NRG H2?
(c) What expertise did Global NRG H2 have with providing seed capital?
(d) Had Global NRG H2 ever provided seed capital before?
Category 2
(a) To be answered.
(b) To be answered.
(c) To be answered.
(d) To be answered.
(e) If the defendant’s answer to 17(d) is ‘yes’, then in respect of each instance of seed capital that it had provided:
(i) On what date did it provide that seed capital?
(ii) What was the amount(s) of the seed capital that it provided?
(iii) What is the full legal name(s) of the
individual(s) and/or entity(ies) that it provided seed capital to?
(e) To be answered.
8
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