Jones v Auckland Council - [2012] NZHC 29

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-2338 [2012] NZHC 29

UNDER Part 30 of the High Court Rules

IN THE MATTER OF a decision to sell WESTPARK MARINA land and a decision as to the volume of dredging required at Westpark Marina

BETWEEN ALAN JAMES JONES, CHRISTOPHER JOHN GEDYE, CHARLES ANDREW HOWARTH, BRENT ALEXANDER IVIL AND ALAN SEFTON (AS TRUSTEES OF THE WESTPARK MARINA ASSOCIATION TRUST)
Plaintiffs

ANDAUCKLAND COUNCIL First Defendant

ANDWESTPARK MARINA LIMITED Second Defendant

Hearing: 27 January 2012

Appearances: D B Hickson for Plaintiffs
M E Casey QC with A J Davidson for First Defendant
No apperance for Second Defendant

Judgment: 27 January 2012

ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELL

Solicitors:
D B Hickson, P O Box 56613 Auckland 1445, for plaintiffs
Email: dhickson@ihug.co.nz

Kevin McDonald & Associates, P O Box 331-065 Auckland 0740
Email: Kevin.Mcdonald@xtra.co.nz

Copy for:
Matthew E Casey QC/A J Davidson, P O Box 317 Auckland 1140, for first defendant
Email: matt@casey.co.nz / asher@casey.co.nz

Michael J Ruffin, P O Box 1662 Auckland 1140, for second defendant
Email: mike.ruffin@vodafone.net.nz

JONES AND OTHERS (AS TRUSTEES OF THE WESTPARK MARINA ASSOCIATION TRUST) V AUCKLAND COUNCIL HC AK CIV-2010-404-2338 27 January 2012

Case Officer: Iutita.Esekielu@justice.govt.nz

[1] The plaintiffs apply for particular discovery against the first defendant under r 8.24 of the High Court Rules:

8.24Order 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 any other party.

[2] The documents that the plaintiffs ask the first defendant to discover are set out in a schedule to the application for discovery:

1The agreement for sale and purchase entered into between Waitakere Properties Limited as vendor and The Cove Limited as purchaser in respect of Lot 3, Deposited Plan 110480, Westpark Marina, Clearwater Cove, Hobsonville, in or about late 1999.

2The agreement for sale and purchase entered into between Waitakere Properties Limited as vendor and The Cove Limited as purchaser in respect of Lot 4 Deposited Plan 110480, Westpark Marina, Clearwater Cove, Hobsonville, in or about late 1999.

3All correspondence between Waitakere Properties Limited, Waitakere City Council, Westpark Marina Limited and The Cove Limited and any other party whatsoever, touching on or concerning the aforementioned agreements for sale and purchase.

4 The report prepared by Waitakere Properties Limited in or…

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.

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Details

Case: [2012] NZHC 29
Decision Date: 27 January 2012

CaseChat Overview and Summary

The plaintiffs, who are the trustees of the Westpark Marina Association Trust, sought judicial review of certain decisions made by the Auckland Council relating to the marina, as well as relief against both the Council and Westpark Marina Ltd, the operator of the marina, for alleged breaches of an alleged trust said to exist in favour of the berth-holders. They also challenged Council decisions on costs of dredging. The plaintiffs sought particular discovery against the Auckland Council to obtain certain documents that they believed were relevant to their claims. The Auckland Council opposed the application on the grounds that it had already made extensive efforts to locate the documents, that the documents had already been made available to the plaintiffs, and that the order for discovery would be oppressive and result in disproportionate costs. The legal issues before the court were the relevance of the documents sought by the plaintiffs and the inconvenience and difficulty in locating those documents. The court found that the documents sought by the plaintiffs had marginal relevance to the issues in the case, as the validity of the transfers would stand or fall on the matters already identified in the plaintiffs' statement of claim, for which documentation was already available. The court also found that the Council's plea that locating the documents would be a long, exhausting, and possibly a fruitless process was relevant in determining how discovery should be directed. The court decided to adjourn the application to allow the parties to work out some arrangements themselves, such as the plaintiffs undertaking a search of the cartons of files themselves, under supervision, and meeting those costs. The court also discussed further case management directions for the case.

The court's decision was based on a careful consideration of the relevance of the documents sought by the plaintiffs and the inconvenience and difficulty in locating those documents. The court found that the documents sought by the plaintiffs had marginal relevance to the issues in the case, as the validity of the transfers would stand or fall on the matters already identified in the plaintiffs' statement of claim, for which documentation was already available. The court also found that the Council's plea that locating the documents would be a long, exhausting, and possibly a fruitless process was relevant in determining how discovery should be directed. The court decided to adjourn the application to allow the parties to work out some arrangements themselves, such as the plaintiffs undertaking a search of the cartons of files themselves, under supervision, and meeting those costs. The court also discussed further case management directions for the case. The court's decision was based on a careful consideration of the facts and the law, and it balanced the need for the plaintiffs to obtain relevant documents with the need to prevent oppressive and disproportionate discovery.

Orders