Kumar v Many Limited

[2025] NZHC 3304

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-414-000013

[2025] NZHC 3304

BETWEEN

ROSHNI KUMAR

Plaintiff

AND

MANY LIMITED

Defendant

Hearing:

20 October 2025

Appearances:

P F Dalkie for the Plaintiff

M B Wigley for the Defendant

Judgment:

4 November 2025

JUDGMENT OF ASSOCIATE JUDGE COGSWELL

This judgment was delivered by me on 4 November 2025 at 4.00 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date.......................................

Solicitors:

Dyer Whitechurch, Auckland

Wigley and Company, Wellington P F Dalkie, Auckland

KUMAR v MANY LTD [2025] NZHC 3304 [4 November 2025]

The application

[1]    The defendant applies under r 8.19 of the High Court Rules 2016 for particular discovery against the plaintiff, alleging that her discovery is insufficient and incomplete. The application seeks particular discovery of:

(a)the plaintiff’s personal email accounts;1

(b)the email accounts of her late husband, Pradip Kumar;

(c)the email accounts of Anil Thapliyal; and

(d)the     mobile     phone     text     records     of     the     plaintiff     and Anil Thapliyal.

[2]    The defendant’s application that the plaintiff be cross-examined as to her compliance with her discovery obligations was not advanced at the application.

[3]The plaintiff opposes the application on the grounds that:

(a)the application does not meet the test for particular discovery set out in cases such as Hyzon Motors Inc v Bartlett;2 and

(b)the application is fishing, there is no evidence of the existence of any relevant documents as sought by the defendant.

The claims

[4]    The plaintiff seeks judgment against the defendant for the unpaid balance due under an agreement for sale and purchase of shares (share agreement) in a company called FM 105.3 Ltd. The sum due under the share agreement was to be paid in tranches, and the final tranche of $337,021.20 remains outstanding. The plaintiff seeks judgment accordingly.

1      The defendant’s earlier request for the plaintiff’s work email as well was withdrawn before the hearing.

2      Hyzon Motors Inc v Bartlett [2024] NZHC 1193.

[5]    The defendant alleges by way of counterclaim breaches of warranties contained in the share agreement. It says the breaches caused loss and damage in a sum yet to be quantified. The defendant pleads that the damages will be quantified following discovery, interrogatories and “other steps”.

[6]The allegations of breach of warranty in the share agreement are denied.

[7]    The key issue in the proceedings is the breach of warranty claims. That includes the performance of FM105.3 Ltd, the involvement of the associated entity Radio Tarana Ltd, Pradip Kumar’s knowledge of the alleged financial difficulties of those companies, the plaintiff’s knowledge of those alleged financial difficulties, and the determination of any losses arising from the allegations. These are the relevant issues.

The discovery

[8]    The parties undertook standard discovery under r 8.7. Both parties were obliged to discover documents, notwithstanding that either one or the other already had those documents in their possession. It is no answer to the plaintiff to say that the defendant, as now owner of the business, has the documents. Both parties must discover them.

[9]    The plaintiff swore an amended affidavit of documents on 9 May 2025. The affidavit includes the narrative requirements required by Form G 37. This includes a requirement to outline the steps taken to fulfil the discovery obligations.

[10]   The affidavit of documents addresses in detail the searches that the plaintiff made in her and Anil Thapliyal’s emails for documents relevant to the issues in the proceeding. In particular, the plaintiff set out in detail the search terms used to interrogate her and her now husband’s email accounts looking for relevant documents. It is a thorough list.

[11]   Based on the application and submissions made by the parties, it is difficult to imagine any further search terms that may have identified relevant emails for discovery. Counsel did not identify any.

[12]   The plaintiff confirms that she reviewed her texts and communications on social media platforms, as well as her now husband’s texts and social media platform communications for relevant documents and deposes to there being no relevant communications further to those already discovered.

[13]   The affidavit confirms that the plaintiff has not discovered email or text messages between the defendant or its director, Robert Khan, and her or Mr Thapliyal. That is not an issue in this application.

[14]   Finally, the affidavit states that the plaintiff does not have access to her late husband Pradip Kumar’s email account.

[15]   The plaintiff’s amended discovery list contains a positive deposition by her that she understands her discovery obligations. It sets out in detail the searches undertaken for emails relevant to the issues in the proceeding. The affidavit of documents was prepared on her behalf by her solicitors.

The approach

[16]   Rule 8.19 sets out the grounds and circumstances where the Court may order particular discovery against a party after a proceeding is commenced.

[17]   The approach adopted by the Court is uncontroversial. There is a four stage test which is cumulative.3 The four steps are:

(a)Are the documents sought relevant, and if so, how important will they be (a criterion described as “materiality”)?

(b)Are there grounds for belief that the documents sought exist? This will often be a matter of inference. How strong is that evidence?

(c)Is discovery proportionate?

3      Above n 2, at [20].

(d)Weighing and balancing these matters, in the Court’s discretion under r 8.19, is an order appropriate?

[18]   Where there is a question raised about the adequacy of a search, the authorities show that it is prudent for a party to confirm that it has searched for and found no further documents.4

[19]   The discovery process starts with a process of self-assessment by litigants, and that assessment will not be disturbed without reason being shown.5

[20]   Solicitors are under a positive duty under r 8.13 to take reasonable care to ensure their client understands its discovery obligations and fulfils them.

[21]   Turning to the four step approach, the first two steps are the most important in determining the application.

Materiality

[22]   The issues between the parties are set out above. The Court treats the allegations of the party seeking discovery as provable.

[23]   It is the case of the party seeking discovery that must be assumed to be true, not that of the party from which discovery is sought.6 The Court will not try the case during a discovery application to decide the ultimate relevance alleged by the party seeking discovery.7

[24]   At the centre of the allegations between the parties is an allegation that the plaintiff was in possession of a negative KPMG review of the operations of FM 105.3 Ltd. The report allegedly raised major issues with the company during the time when Pradip Kumar ran the company. That report is not before the Court, and privilege is claimed in respect of it.

4      Wakefield v Network Waitaki Ltd [2025] NZHC 656 at [21].

5      BNZ Investments Ltd v Commissioner of Inland Revenue [2007] NZCA 356, [2008] 1 NZLR 598 at [28].

6      Kawerau Village Holdings Ltd v Yuen [2015] NZHC 1379 at [38].

7      Rapid Metal Developments NZ Ltd v Access One Scaffolding Ltd [2017] NZHC 204 at [5] and [14].

[25]   A report was issued by the director of FM 105.3 Ltd following the KPMG report which allegedly set out the serious issues the company was experiencing, and which in many respects founds the breach of warranty allegations in this proceeding. The defendant says that the plaintiff was aware of those issues, but did not disclose them.

[26]   The defendant says that there are two areas which are the focus of the application:

(a)documents related to alleged circumstances underlying warranty allegations, which would typically (if not always) be before the death of Pradip Kumar; and

(b)where Roshni’s knowledge (which includes the knowledge of Anil Thapliyal) is a required ingredient on top of that, then documents relating to that knowledge of the circumstances in (a); that includes her knowledge before and after Pradip’s death.

[27]The defendant says that both of those types of documents are relevant.

[28]   The plaintiff’s position is that those documents are not relevant, but in any event, there are none and that she has discharged her discovery obligations in searching for them. I consider that the documents identified, if in existence, are relevant on the pleaded claims.

Grounds for belief

[29]Hyzon Motors Inc also gives guidance on the second limb:8

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 source documents actually exist.

8      Above n 2, at [21].

[30]   As the Court stated in Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd “The threshold embodied in “grounds for belief” is not that high.”9 This limb of the test is broad. The grounds for belief may be established from evidence or from the nature or circumstances of the case, or from any document filed.

[31]   The grounds for belief should be specified in an affidavit by a person who has knowledge of them in order to enable the Court (not the deponent) to form the appropriate belief.10 It is not necessary to establish the existence of the documents on the balance of probabilities, all that is necessary is to show that there is some credible evidence that the documents sought exist. It is trite to note that fishing expeditions will not be permitted.

Discussion

[32]   In order to direct particular discovery in terms of the four step test in Hyzon Motors Inc, the defendant must demonstrate that the documents they seek are not only relevant but also that there is credible objective evidence that the documents exist.

[33]   That relatively low threshold will often be met by identifying documents that evidence the existence of other documents relevant to the pleaded issues, or a type or category of documents for which there has been no discovery at all, but which if identified, would have been relevant and therefore discoverable.

[34]The defendants focus their application on two categories of documents:

(a)the emails from the plaintiff, Anil Thapliyal and Pradip Kumar, and

(b)texts from the plaintiff and Mr Thapliyal.

[35]To that extent, therefore, it is a focused application.

9      Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd [2015] NZHC 2760, [2018] NZAR 600 at [12].

10     AMP Society v Architectural Windows Ltd [1986] 2 NZLR 190 (HC) at 198–199.

[36]   However, the difficulty the application faces is the presumed correctness of the plaintiff’s amended affidavit of documents, and her thorough explanation of the searches she undertook to locate documents that would be relevant to the issues in this proceeding, and therefore discoverable if within the plaintiff’s power, possession or control.

[37]   For the defendant, Mr Khan deposes to concerns he has about the adequacy of the discovery. He outlines his belief that emails and texts must exist that have not been discovered.

[38]   The defendant makes the point, a good one, that often on particular discovery applications the party seeking particular discovery may not know exactly what documents exist and should be discovered to comply with the general discovery obligations.

[39]   However, in that circumstance, there is normally to be expected some evidential basis for an allegation that there has been a failure to completely discover documents. That is, some evidence to establish the presumptive existence of documents not discovered, or a failure to locate and discover relevant categories of documents or the like.

[40]   Here, and with respect to the defendant, the evidence largely equates to a sense that there “must be” more documents than have been discovered. The defendant expresses some incredulity that there are no emails between these parties on the issues.

[41]   However, other than in relation to a general narrative discussion of the way in which the three relevant persons operated in business, there is no specific identification of documents pointing to the defendant’s grounds for a belief that other documents exist that must be discovered.

[42]   Reference to board minutes of the company do not assist in answering the question of whether the plaintiff has discovered emails and texts as sought in the application. Rather, there is a sense that the defendant simply considers that the documents must exist but cannot point to any evidence suggesting their existence.

[43]   My concern about the lack of evidence suggesting the existence of other documents is compounded by the detailed evidence given by the plaintiff of the steps she took to locate emails and texts as sought by the defendant. I cannot easily look behind that position, as it carefully and in a detailed way sets out what the plaintiff did to comply with her discovery obligations. The list of search terms used to search both the plaintiff’s and Anil Thapliyal’s emails is comprehensive.

[44]   The same applies in relation to the plaintiff and Anil Thapliyal’s emails and social media communications.

[45]   It follows from this that I find that the defendant has not established that there are grounds to believe that there are emails from the plaintiff or Anil Thapliyal’s accounts that have not been discovered but should be.

[46]   For similar reasons I find that the defendant has not established that there are grounds to believe that there are texts from the plaintiff or Anil Thapliyal that should have been discovered.

[47]   The defendant makes the point that parties giving discovery frequently use electronic tools that enable efficient and economic triaging and searching of email databases. The submission is made that it seems the lawyers have had little role in extracting the emails and reviewing email databases.

[48]   However, reference to the narrative part of the plaintiff’s affidavit makes it clear that exactly that search process was undertaken. It is the type of process that would be ordered in a particular discovery order.

[49]   The deposition is that no documents were located fitting the criteria set out in the broad range of search terms used. I do not consider that there is any evidence before the Court that would lead me to go behind that deposition.

[50]   Turning now to the issue of the emails sought from Pradip Kumar, I consider that the situation is different.

[51]   The deposition in relation to the plaintiff’s search for the emails of Pradip Kumar states that:

The defendant has alleged that I have access to my late husband Pradip Kumar’s email account.   That is no more than an allegation.   It is not true.   I do not, and have never had access to it.

[52]   The suggestion is that Pradip Kumar used a Gmail account for both his personal and business affairs. The plaintiff is the executor of Mr Kumar’s estate. As such, she is the person with the right to Pradip Kumar’s property. Mr Kumar’s email account is his property, available to the executor.

[53]   The plaintiff is able to have access to, review and give discovery of the Gmail account operated by Pradip Kumar. I consider that, unlike in relation to the other parts of her affidavit on the issue of the adequacy of discovery, further steps should be taken to locate and discover emails from Pradip Kumar’s email account.

[54]   This is not so much a finding that there are grounds to believe that such relevant emails exist but were not discovered, but rather a finding that the plaintiff has not discharged the obligation on her to take all reasonable steps to provide discovery of documents within her power, possession and control. In that regard, I direct the plaintiff to:

(a)Make inquiry with Google or other IT experts on her ability to access Pradip Kumar’s email account.

(b)If access is available, then she is to carry out searches using the search terms set out at paragraph [4](a) of her first amended affidavit of documents, affirmed on 9 May 2025.

(c)If access is not available, then she is to file an affidavit setting out the steps she took to obtain access and the reasons why, in detail, access is not available.

Result

[55]   I do not consider that the defendant has established that it is entitled to particular discovery of: the plaintiff’s or Anil Thapliyal’s email accounts; or texts from her or Anil Thapliyal’s mobile phones.

[56]   I consider that the plaintiff has failed to undertake all reasonable steps to give discovery of emails in Pradip Kumar’s email account, to the extent that those emails may be relevant to issues in this proceeding.

[57]   The plaintiff is to take the steps set out above in relation to access to and discovery of relevant emails from Pradip Kumar’s Gmail account.

[58]   The plaintiff is directed to file either an updating affidavit of documents disclosing the documents in Pradip Kumar’s Gmail account or, alternatively, if access is not available, an affidavit setting out in detail the steps she took to attempt to obtain access, by 5 December 2025.

Costs

[59]Both parties have succeeded in part in this application.

[60]I make no order as to costs. Costs lie where they fall.

Associate Judge Cogswell