Lighter Quay Residents' Society Inc v Waterfront Properties (2009) Limited
[2015] NZHC 2466
•8 October 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2012-404-7509 [2015] NZHC 2466
BETWEEN LIGHTER QUAY RESIDENTS'
SOCIETY INC First Plaintiff
BODY CORPORATE NUMBER 326496 (NORTH AT LIGHTER QUAY)
Second Plaintiff
BODY CORPORATE NUMBER 343562 (STRATIS AT LIGHTER QUAY)
Third Plaintiff
BODY CORPORATE NUMBER 358939 (HALSEY AT LIGHTER QUAY)
Fourth Plaintiff
AND
WATERFRONT PROPERTIES (2009) LIMITED
First Defendant
BRUCE GRAY QC Second Defendant
Hearing: 14 May 2015
Further material filed on 22 September 2015
Counsel:
P A Morten for the Plaintiffs
P G Skelton QC and S M Thompson for the First Defendant
Appearance by the Second Defendant excusedJudgment:
8 October 2015
RESERVED JUDGMENT OF ELLIS J
I direct that the delivery time of this judgment is
3.15 pm on the 8th day of October 2015
LIGHTER QUAY RESIDENTS' SOCIETY INC v WATERFRONT PROPERTIES (2009) LTD [2015] NZHC 2466 [8 October 2015]
[1] This judgment relates to competing applications for discovery.
Background
[2] The general background to the wider dispute is set out in my judgment dated
15 October 2013.1 For reasons of coherence, however, it is relevant to repeat and amplify some of that background here.
[3] The first defendant (Waterfront) was the building manager at a residential apartment complex in the Auckland Viaduct known as “Lighter Quay”. Lighter Quay comprises four unit titled buildings, each with its own Body Corporate, known as North (the second plaintiff), Stratis (third plaintiff), Halsey (fourth plaintiff) and Westin (not a party to these proceedings).
[4] There were management agreements between Waterfront and each of the Bodies Corporate and also between Waterfront and the first plaintiff, Lighter Quay Residents’ Society Incorporated (LQRS), which managed the common facilities shared by the Bodies Corporate. Waterfront was entitled to charge management fees pursuant to the agreements.
[5] Although, as I have said, Waterfront had a separate contractual management relationship with all plaintiffs, it is the relationship between LQRS and Waterfront that appears to be central, and it was to the documents governing that relationship to which I was referred in the course of argument. Accordingly for the purposes of the present applications I propose only to refer to that relationship and those documents.2
Thus:
(a) The management agreement between LQRS and Waterfront provided that:
(i)the relationship between LQRS and Waterfront is one of principal and agent;
1 Lighter Quay Residents’ Society Inc v Waterfront Properties (2009) Ltd [2013] NZHC 2678.
2 As I understand it the agreements between Waterfront and the other plaintiffs are either the same or, to the extent they are different, not separately in issue.
(ii)the management fee for each month was to be equal to 1/12 of the estimated management expenses for the relevant financial year and 10 per cent of the estimated operating costs for each financial year. At the end of each year there was to be a “wash up” following provision by Waterfront of an itemised statement of its actual management and operating expenses.
(iii)Waterfront was required to provide an estimated statement of receipts and payments for the coming financial year, showing its estimate of management and operating expenses (exclusive of management fees) to be paid by LQRS;
(b)The LQRS constitution provides that the manager (Waterfront) shall be and shall at all times remain as treasurer/secretary of LQRS.
[6] As regards this last point, both before and at the hearing before me, the plaintiffs’ position was that BDO Spicers (BDO) was formally appointed by Mrs Julie Abel as the Secretary of LQRS in September 2009 and that BDO had remained so until August 2010.3 Mr Morten subsequently sought, and was granted, leave to submit material which indicates that the more accurate position is that, at all material times, Waterfront remained as secretary but engaged BDO to provide
certain services and assistance in that regard. Whether that makes a difference to the matters presently at issue is a question that I do not need to address here.
[7] In any event, a dispute about the calculation of the management fees and the underlying expenses that Waterfront said it had incurred was (inter alia) referred to Mr Stephen Mills QC for expert determination in accordance with the disputes procedures under the agreements. Overcharging by Waterfront in a number of respects was alleged. Mr Mills’ determination was issued on 9 April 2011. In it, he made findings of general principle in relation to what could reasonably be charged
for by Waterfront but left it to the parties to work out “who owes what to whom”.
3 Mrs Abel was at all relevant times a shareholder and director of Waterfront. It is she that is the object of the non-party discovery application that is addressed later in this judgment.
[8] In June and July 2011 the plaintiffs purported to terminate the management agreements on the grounds of gross misconduct, which have been said relevantly to include:
(a) the fabrication of invoices to justify costs charged; (b) deliberate overcharging;
(c) charging for the performance of services that Waterfront was required by the management agreements to perform;
(d) charging the costs of engaging contractors to perform services that
Waterfront was required by the management agreements to perform.
[9] In July 2011 Waterfront purported to assign the management contracts to
Beswick Holdings Ltd. The validity of that assignment is presently also in dispute.
[10] Auditors were engaged by LQRS to review its financial records and to calculate the amounts it had been overcharged by Waterfront. A statutory demand was issued for the total amount in September 2011. Waterfront applied to have that demand set aside on the ground (inter alia) that there was a substantial dispute as to the amount owing. LQRS consented to the setting aside on the basis that it accepted that such a dispute existed.
[11] Following the purported termination of the management agreements by the plaintiffs, Waterfront served notices of dispute on them and, on 22 June 2012, the second defendant, Mr Gray QC, issued a determination in which he found the agreements were not validly terminated. Mr Gray’s expert determination was to have a second stage aimed at resolving the issues left open by Mr Mills’ determination and, in particular, the amount by which LQRS has been overcharged.
[12] Following phase 1 of Mr Gray’s expert determination, however, the plaintiffs commenced proceedings in the High Court. The first cause of action sought a declaration that Mr Gray’s determination was not final and binding. The plaintiffs also made various claims relating to disputes that had been referred to Mr Gray.
Waterfront applied to strike out and stay the High Court proceedings pending phase 2 of the expert determination, but was not successful in either this Court or in the Court of Appeal.4 Accordingly the proceedings are now being progressed in the High Court.
The statement of claim
[13] The statement of claim contains six causes of action. In my earlier judgment
I summarised these as follows:5
First cause of action
[39] The first cause of action is brought against both the first and second defendants and is entitled “breach of contract”. The plaintiffs allege that Mr Gray had a contractual duty to determine the dispute that had been submitted to him and failed to do so. It is also alleged that Mr Gray had the power to determine his own procedure, including the power to permit cross- examination irrespective of any objection by the parties. Thus, it is said, Mr Gray misdirected himself as to the procedure to be followed and, in the result, “failed to determine the preliminary issues submitted to him by the parties”.
[40] The relief sought is (inter alia) a declaration that the preliminary determination is not binding.
Second cause of action
[41] The second cause of action is brought against the first defendant only. It alleges myriad breaches of the management agreements. The relief sought is a declaration that the plaintiffs have validly determined those agreements.
[42] There is no dispute that the subject matter of this claim (including the remedy sought) is essentially identical to the subject matter of Mr Gray’s determination.
Third cause of action
[43] The third cause of action is pleaded in the alternative to the second. The claim is that if the plaintiffs have not validly determined the management agreements then the first defendant is nonetheless in breach of those agreements. An inquiry into damages is sought.
[44] Again, it is not in dispute that there is considerable, if not total, overlap between the nature and subject matter of this claim and the nature and subject matter of the remaining dispute before Mr Gray.
4 Lighter Quay Residents’ Society Inc v Waterfront Properties (2009) Ltd, above n 1; Waterfront Properties (2009) Ltd v Lighter Quay Residents’ Society Inc [2015] NZCA 62, [2015] NZAR 492.
5 Lighter Quay Residents’ Society Inc v Waterfront Properties (2009) Ltd, above n 1.
Fourth cause of action
[45] The fourth cause of action alleges that as the plaintiffs’ agent, the first defendant owed each of the plaintiffs fiduciary obligations to act in good faith, in their interests and to use its powers for a proper purpose. The factual allegations said to constitute breach of the fiduciary duty owed are the same as the factual allegations said to constitute breach of contract under the second and third causes of action. An inquiry into damages is again sought.
Fifth cause of action
[46] The fifth cause of action is based on s 140 of the UTA, …
[47] The plaintiffs allege that, both the terms of the management agreements themselves and the performance by the first defendant of those agreements, mean that the agreements are harsh and unconscionable and should be terminated “ab initio” under this provision. Compensation under subs (2) is also sought.
Sixth cause of action
[48] This cause of action relates to a previous expert determination undertaken by Mr Mills QC, the consequence of which, according to the plaintiffs, is that the first defendant owes them $312,489.68 plus interest. The first defendant disputes that this is the amount owing and has previously been successful in having a statutory demand for that amount set aside. Although, in his determination, Mr Mills recorded that he was available to deal with any further disputes about quantum, the parties agreed that that issue could, instead, be dealt with by Mr Gray as part of “phase two” of the more recent expert determination process.
The competing discovery applications and the relevant rules
[14] The plaintiffs have filed an application for particular discovery against the first defendant and an application for non-party discovery against Mrs Abel. The defendants have filed an application for particular discovery against the plaintiffs.
[15] Rule 8.19 governs particular discovery, and provides:
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.
[16] It has been said that whether a document “should have been discovered” must relate, or is referable, to the “adverse documents” obligations contained in rr 8.7 and
8.18(2).
[17] And non-party discovery is governed by r 8.21, which states:
(1) This rule applies if it appears to a Judge that a person who is not a party to a proceeding may be or may have been in the control of 1 or more documents or a group of documents that the person would have had to discover if the person were a party to the proceeding.
(2) The Judge may, on application, order the person—
(a) to file an affidavit stating—
(i) whether the documents are or have been in the person's control; and
(ii) if the documents have been but are no longer in the person's control, the person's best knowledge and belief as to when the documents ceased to be in the person's control and who now has control of them; and
(b) to serve the affidavit on a party or parties specified in the order; and
…
[18] And r 8.22(3) provides that if an order under r 8.21(2) is made:
… the Judge may, if the Judge thinks it just, order the applicant to pay to the person from whom discovery is sought the whole or part of that person's expenses (including solicitor and client costs) incurred in relation to the application and in complying with any order made on the application.
[19] In Clear Communications Ltd v Telecom Corporation of NZ Ltd, the Court noted that there are two separate costs issues in applications involving non-parties: the costs of the application, and the costs of compliance with an order for discovery.6
[20] An order to meet a non-party’s expenses under rule 8.22(3) is not automatic.
[21] It is against that factual and legal background that I turn to consider the three applications before me.
Plaintiffs’ application against first defendant
[22] Initially the plaintiffs sought particular discovery from the first defendant of the following:
(a) the first defendant’s financial accounts for the years ending
31 March 2011 and 2012;
(b) the first defendant’s general ledgers showing the breakdown of
individual invoices charged to the plaintiffs;
(c) the first defendant’s GST returns for the years ending 31 March 2010,
2011 and 2012;
(d)correspondence between the first defendant and the first defendant’s agent, BDO, that relate to fees and expenses charged to the first plaintiff by the first defendant;
(e) written notes, communications and memoranda prepared by BDO in relation to the first defendant’s management contract with the first plaintiff (including invoices raised by the directors of the first defendant, addressed to the first defendant, and on-charged to the first
plaintiff); and
6 Clear Communications Ltd v Telecom Corporation of NZ Ltd (1994) 8 PRNZ 200 (HC).
(f) correspondence by BDO with the first defendant in relation to the possible sale of the plaintiffs’ management contracts, including the due diligence report by BDO.
[23] The first defendant did not oppose aspects of the plaintiffs’ application, however, so I am able to make orders in terms of paragraphs (b) to (d) above by consent.
[24] Waterfront does, however, oppose the orders sought in relation to two categories of documents, namely:
(a) its financial accounts for the years ended 31 March 2011 and
31 March 2012 (paragraph (a) above); and
(b)correspondence from BDO to Waterfront in relation to the possible sale of the management contracts, including the due diligence report (paragraphs (e) and (f) above).
[25] Each will be considered in turn.
Financial accounts
[26] The plaintiffs say that the first defendant’s financial accounts should be discovered because they are relevant to the “financial issues” in the proceedings. When pushed to articulate the relevance of the accounts more specifically, during the hearing, Mr Morten said that what “may be revealed” is:
(a) general ledger documents which will disclose those payments actually made by Waterfront;
(b) supplier and payment history actually made and brought to account by
Waterfront in each financial year;
(c) whether Waterfront has sought reimbursement of amounts not actually incurred; and
(d)whether or not Waterfront has sought reimbursement of amounts at a higher level than the amounts actually incurred.
[27] But I am unable to accept this submission. As far as (a) and (b) are concerned, Waterfront has already agreed to disclose its general ledgers showing the breakdown of individual invoices charged to the plaintiffs. And the reasons recorded at (c) and (d) are simply statements of what use the plaintiffs wish to make of the material. The reality is that the source documents (the general ledgers and breakdown of invoices) are much more likely to assist in those tasks than the financial statements, which will necessarily be at a much higher level of generality and will include no itemisation of particular charges. Accordingly I am unable to see how any reconciliation or cross-checking exercise will be further assisted by the discovery sought.
[28] To the extent the plaintiffs’ application was also based on some kind of “tit for tat” position (namely that any entitlement by the defendants to inspect the plaintiffs’ financial statements, should be mirrored in discovery orders made against the defendants) I reject it. The competing applications fall to be determined on their own merits; they are not equal and opposite.
[29] Accordingly I decline to make the order sought.
BDO documents
[30] The plaintiffs say (and it is not disputed) that BDO prepared a “due diligence” report for Waterfront, in the context of its proposed sale or assignment of the four management agreements. In that regard Mr Woodhams deposed that:
The copy of the BDO report sighted by me set out projections for the possible revenues and expenses that a purchaser could expect to earn from the management contracts if acquired from Waterfront. These are relevant to the issues that arise in the statement of claim. The projections appeared to include expenses that Mr Mills QC had determined could not be on-charged by Waterfront. The revenue that Waterfront predicted could be earned from the contracts was significantly higher than contemplated by the management contracts or the budgets that Waterfront had submitted to the Residents Society. The due diligence report and the papers on which it is based will be relevant to Waterfront’s financial management under the Residents’ Society management contract.
The plaintiffs believe that the BDO report and supporting documents are relevant to the management and operating expenses issues that arise in the cause of action in the statement of claim.
[31] The sale for which the due diligence report was prepared did not in fact proceed.
[32] Notwithstanding Mr Woodham’s belief, however, I am unable to see how the material sought is relevant to matters raised by the claim. Projected (hypothetical) future earnings cannot be relevant to the quantum of the reimbursement that must be paid by the first defendant to LQRS. Indeed, Mr Morten accepted in argument that the due diligence report did not “directly relate” to any allegations in the statement of claim. Rather, he said, that it “might” go to credibility issues. More particularly, he suggested that the material might show that certain of Waterfront’s employees and officers had a propensity to act in a deceitful way, for example if it transpired that the information provided to BDO was in some material way false or misleading.
[33] In my view this is simply too tangential to get over the relevance hurdle. I
therefore decline to make an order for discovery in relation to the BDO documents.
The plaintiffs’ application for non-party discovery against Mrs Abel
[34] As I have said, Mrs Abel was at all relevant times a shareholder and director of Waterfront. The plaintiffs sought orders that she make discovery of her financial accounts, income tax returns and GST returns for the financial years ending March 2010, March 2011 and March 2012.
[35] I accept (and I do not think it is disputed) that payments made by Waterfront to Ms Abel during this time are at issue in these proceedings.
[36] Mrs Abel did not file a notice of opposition to the application. Instead, shortly before the hearing, she wrote a letter to the Registrar advising:
This information is personal information and not part of the Waterfront litigation but I am quite happy to comply with the request, however I would ask that any reasonable costs incurred, eg instructing my accountant who will need to get the information from his archives, and having a solicitor complete any affidavit that is required, covered.
[37] Although Mr Morten opposed any payment of costs to Mrs Abel I am satisfied that it would be appropriate to make a standard order under r 8.22 that her reasonable expenses be met by the plaintiffs. As noted above such an order is not a costs order strictly so-called but merely a recognition that she, as a non-party, will be required to incur some costs in giving the discovery sought. I would not expect those expenses to be very great.
[38] Accordingly I propose to make the order for non-party discovery sought by the plaintiffs but will also direct that the plaintiffs are to meet any reasonable expenses incurred by Mrs Abel in complying with that order.
The Defendants’ application
m
[39]
docu
The ents:
(a)
defendants initially sought particular discovery of the following
bank statements showing all payments made by each plaintiff to the
first defendant or to Mrs Julie Abel in relation to the management contracts between 1 September 2009 and 31 July 2011; (b)
the plaintiffs’ MYOB general ledgers for the period 1 September 2010
to 31 July 2011 recording the breakdown of all individual invoices
charged by the first defendant to the plaintiffs during that period and
all payments recorded as having been made by each of the plaintiffs to
the first defendant during that period; (c)
all documentation (including invoices and bank statements)
evidencing the payment of $163,385.70 … allegedly made by the first
plaintiff for cleaning, gardening and caretaking costs during the period
1 September 2009 to 31 March 2011; (d)
financial accounts for the first plaintiff for the years ending
31 March 2010, 31 March 2011 and 31 March 2012;
(e) schedules detailing the first plaintiff’s operating expenses for each of the financial years ending 31 March 2010, 31 March 2011 and
31 March 2012;
….
[40] By the time of the hearing before me, only (a) was really in dispute (although (a) incorporates part of (c)). Mr Skelton submitted, and I accept, that this category of documents is relevant, in particular, to the sixth cause of action. In that cause of action the first plaintiff alleges that the first defendant has charged it for amounts that the first defendant was not entitled to charge and is entitled to a refund. The alleged amounts overcharged are as follows:
(a) $142,075.60 (+ GST) for the period ending 31 March 2010;
(b) $132,743.20 (+ GST) between 1 April 2010 and 31 March 2011. [41] More specifically, it is alleged that based on Mr Mills’ findings:
(a) the first defendant charged, when it was not entitled to, $7,500 + GST per month (for an unspecified period) for office attendances by Mrs Abel; and
(b)the first plaintiff was overcharged by $83,112.27 + GST across both periods for cleaning, gardening and caretaking (Mr Mills found that the first defendant was entitled to charge $3,500 per month for this service);
(c) there is also alleged overcharging in relation to: (i) management fees for both periods;
(ii) payments made for night staff fees; and
(iii) expenses that were not supported by invoices (period ending
31 March 2011).
[42] The first defendant accepts that (subject to any set-off) the plaintiff is entitled to a refund of any excess payments but requires evidence of what was actually paid. In that respect:
(a) Mr Reck has deposed that he does not know how the overpayments have been calculated;
(b)the plaintiff has not pleaded how much it paid for cleaning, gardening and caretaking for the year ending 31 March 2011.
[43] The relevant part of the plaintiffs’ notice of opposition stated:
The plaintiffs do not operate individual bank accounts;
First Street Body Corporate Management Ltd (First Street), the secretary for each of the plaintiffs, is responsible for the management of the financial affairs of each of the plaintiffs;
First Street operates Westpac segmented trust accounts for funds held on behalf of all its clients;
Each payment made by First Street on behalf of the plaintiffs has been entered onto the MYOB system operated for each of the plaintiffs, and tracked;
The plaintiffs have already discovered the MYOB details.
[44] By the time of hearing before me that position had “morphed” somewhat. In
Mr Morten’s written submissions he said:
Payments to Mrs Abel were made by Waterfront, who employed her, not by the plaintiffs.
For the period 1 September 2009 until August 2010, BDO was Waterfront’s
appointed Secretary and Treasurer for LQRS.
The plaintiffs do not have “bank statements” showing individual payments. From August 2010, First Street has segmented trust accounts which batch/aggregate payments on a daily basis.
All payments made by the plaintiffs to Waterfront are recorded in the MYOB
documents that have been provided by the plaintiffs.
[45] And as I have noted at [6] above, after the hearing Mr Morten submitted further material that indicated that Waterfront itself remained the Secretary and Treasurer of the plaintiffs at all material times and that it had merely contracted with BDO to provide the relevant accounting and financial services. It is not clear to me how that position affected the submission he had previously made about First Street’s role.
[46] As far as the documents specifically relating to the cleaning, gardening and caretaking charges are concerned the plaintiffs say that they are detailed in the MYOB documents and that copies of the relevant invoices have already been discovered in the expert determination.
[47] In my view the short point is that any bank statements that do exist (or the data which can be extrapolated from the batched records) should be disclosed. The data contained in the MYOB system is only as good as the data that are input into the system. In that respect I accept Mr Skelton’s submission that it is bank statements that are likely to constitute the best evidence of what payments were made and to whom.
[48] To the extent this material is held either by BDO or First Street it must be within the plaintiffs’ power to obtain it. The bank records belong to the plaintiffs. Regardless of whether BDO or First Street had or have a formal “secretarial” status in relation to the plaintiffs, and regardless of by whom they were engaged, any records they hold pertaining to the plaintiffs’ financial affairs must be held in their capacity as the plaintiffs’ agents, and must logically be within their control. If it really is for some reason not possible for the plaintiffs to obtain those records an affidavit setting out the efforts that have been made should be sworn and filed.
[49] As far as the contention that the additional documents evidencing the cleaning, gardening and caretaking charges have previously been made available in the context of the expert determination, I also agree with Mr Skelton that the proper course is for an affidavit to be sworn identifying those documents and indicating where they can be found in the expert determination bundles. I say that not simply because present counsel for the first defendant was not counsel in the Mills’
determination but also because it minimises the risk of subsequent confusion and surprise.
Result
[50] In summary:
(a) by consent, an order is made in terms of paragraph 1(ii)(a) of the
plaintiffs’ application for particular and non-party discovery;
(b) the plaintiffs are to meet the reasonable expenses incurred by Mrs
Abel in complying with the order at (a) above;
(c) I decline to make the orders sought in paragraphs 1(i)(a) and (f) of that application;
(d) an order is made in accordance with paragraph 1(a) of the first
defendant’s application for particular discovery;
(e) the plaintiffs are also to swear an affidavit identifying any documents evidencing the cleaning, gardening and caretaking charges which have previously been made available in the context of the expert determination, and indicating where they can be found in the expert determination bundles.
[51] All other matters raised by the two applications have been resolved between the parties.
Further directions
[52] I agree with Mr Skelton that further timetabling orders are now required. Due to the effluxion of time between the hearing and this judgment those which he proposed need to be revisited. If counsel are able to agree some appropriate directions a joint memorandum may be filed and the directions can be made on the papers. If there is disagreement each counsel is to file his own memorandum and a telephone conference will need to be scheduled.
[53] As to costs, my present view is that they should lie where they fall. If counsel take a different view memoranda may be filed.
[54] Any memoranda submitted in accordance with the last two paragraphs are to be filed within 10 working days.
“Rebecca Ellis J”
Solicitors:
Gellert Ivanson Ltd, Auckland, for Plaintiffs
Counsel Acting: P A Morten and G H Skeates, Auckland
Buddle Findlay, Auckland, for First Defendant
Counsel Acting: P G Skelton QC and S M Thompson
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