King v Woods

[2014] NZHC 1356

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-3532 [2014] NZHC 1356

BETWEEN

ROBERT ALBERT DUNCAN KING

First Plaintiff

INTERNATIONAL SERVICES AND SYSTEMS LIMITED

Second Plaintiff

AND

MARK WOODS Defendant

Hearing:	11 June 2014 (on papers)
Appearances:	(on papers)
Judgment:	17 June 2014

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

This judgment was delivered by me on

17.06.14 at 2.30 pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

KING & Anor v WOODS [2014] NZHC 1356 [17 June 2014]

[1]       The plaintiffs obtained summary judgment against the defendant in respect of five causes of action contained in the statement of claim in the proceedings against the defendant.   The judgment which  was obtained  was  for $234,248.43 including interest and costs.

[2]      The plaintiffs have now filed a without notice application for an order for examination.    The  application  also  seeks  orders  that  prior  to  the  hearing  the defendant (“examinee”) provide various documents including a statement of means and documents relating to the examinee’s personal finances as well as documents relating to the financial position of Arkles Trust.

[3]      Broadly speaking, the documents which are sought would be relevant to the “standard issues” prescribed in r 17.12 which are the matters concerning which the examinee is to be examined.  The standard issues as defined in r 17.12 (3) include matters  such  as  receipts  and  payments  for  the  preceding  52  weeks,  means  of satisfying the judgment and other matters.

[4]      Before considering the documents that are sought in this case it is necessary

to make brief mention to “Arkles Trust”.

[5]      In  the  documents  filed  in  the  summary  judgment  proceedings  it  was established that the examinee was a trustee of the trust of that name and part of the judgment entered against was in his capacity of trustee of that trust.  Therefore, if that judgment remains outstanding and enforcement steps are required in regard to it, the financial position of the trust is relevant just as is the personal financial position of the examinee.

[6]      I consider that the plaintiffs have established that the judgment remains unsatisfied and that an order ought to be made for the examination of the examinee.

[7]      I next consider the documents which the plaintiffs seek to have the examinee serve on them five working days prior to the date for the examination.

[8]      Whether  or  not  the  Court  makes  an  order  directing  production  of  such documents is a discretionary matter.  Rule 17.12(4) HCR provides as follows:

(4)       When granting the application, the court may order the production of documents at the examination and may impose terms and conditions it thinks just in respect of the conduct of the examination or otherwise.

[9]      The range of documents which are sought is extensive.  I approach the matter on the basis that the Court will be guided by considerations of reasonableness and will not give directions which are oppressive.   A requirement that the examinee provide an oppressively large range of documents would not be a justified order for the Court to make in the exercise of its discretion.

[10]     So far as the question of reasonableness is concerned, this in my view is a matter that is context-specific.  The Court has to make a judgment about the nature of the examinees financial affairs.  Where those are of moderate complexity, it will be unavoidable that a substantial range of documents will need to be produced at the hearing.   Unless a reasonably comprehensive range of documents recording and evidencing the transactions that the examinee has been involved in are provided, it is unlikely that the objects of the examination procedure in Part 17 will be accomplished.

[11]     Based  upon  the  evidence  which  I  considered  at  the  summary  judgment hearing, it is possible for me to make limited findings about this particular subject.  It seemed that the examinee in his own right and as trustee of the Arkles Trust entered into quite a number of transactions for the sale and purchase of property.   The plaintiffs lent him money to facilitate this course of action.  The examinee was at relevant times a manager of businesses operated by the plaintiffs.  To the extent that a judgment is possible in the matter, his financial position is likely to be rather more involved than, say, a person with few assets who has not been engaging in property transactions  and  whose  financial  circumstances  are  more  or  less  restricted  to receiving a salary and paying his/her living costs therefrom.  My conclusion is that while the range of documents sought will require some effort on the part of the examinee to assemble, that is not unjustified having regard to the extent of the amount that he owes pursuant to the unpaid debt and having regard to what is known

about his financial background.  There will therefore be an order pursuant to r 17.12

HCR that the examinee is to attend the Court to be orally examined on oath about the standard issues as defined in r 17.12(3).  The examination is to commence at 10 a.m. on Thursday 24 July 2014.  The examination will concern the examinee personally and the Arkles Trust of which he is a trustee.

[12]     I further order pursuant to r 17.12(4) that the examinee is to produce at the examination  the  documents  set  out  in  paragraph  1(b)  of  the  without  notice application for order for examination dated 16 May 2014.

[13]     The without notice applications sought that the:

Examinee serve copies of the … documents on the examining parties at least

five working days before the date of the examination hearing.

[14]     I am prepared to make an order that in addition to producing the documents in question at the examination copies of the documents are to be served at the address for service of the plaintiffs’ solicitors five working days prior to the examination.  It is a condition of the making of this order that the plaintiffs are to meet the reasonable photocopying costs of the examinee.

[15]     I reserve leave to the examinee to seek further directions in relation to the photocopying costs by filing a memorandum  with the Court not later than five working days after the date of the issue of this order.

[16]     Leave  is  generally  reserved  for  the  parties  to  seek  further  directions  in relation to the examination.

J.P. Doogue

Associate Judge