Marshall v Bourneville
[2015] NZHC 3364
•23 December 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2013-404-3646 [2015] NZHC 3364
BETWEEN CHRISTINE JILL MARSHALL
Plaintiff
AND
MICHAEL VICTOR BOURNEVILLE AND
MARK GRAHAM BLEWDEN AS TRUSTEES OF THE VICTOR FRENCHIE TRUST
First Defendants
MICHAEL VICTOR BOURNEVILLE, MARK GRAHAM BLEWDEN and MARK BOURNEVILLE as Trustees of the VICTOR FRENCHIE TRUST Second Defendants
MICHAEL VICTOR BOURNEVILLE MARK GRAHAM BLEWDEN and MARK BOURNEVILLE
Third Defendants
Hearing: 21 December 2015 Appearances:
A Hart and T J Darby for the Plaintiff
B P C Carter for the DefendantsJudgment:
23 December 2015
JUDGMENT OF ASSOCIATE JUDGE R M BELL
This judgment was delivered by me on 23 December 2015 at 4:30pm
Pursuant to Rule 11.5 of the High Court Rules
…………………………………………………….
Registrar/Deputy Registrar
Solicitors:
Hart & Associates, Parnell, Auckland, for Plaintiff
Morgan Coakle, Auckland, for Defendants
CHRISTINE JILL MARSHALL v MICHAEL VICTOR BOURNEVILLE AND MARK GRAHAM BLEWDEN AS TRUSTEES OF THE VICTOR FRENCHIE TRUST [2015] NZHC 3364 [23 December 2015]
[1] The plaintiff applies for further discovery under r 8.19 of the High Court Rules and applies to set aside under r 8.25 claims to privilege made by the defendants in their affidavits of documents.
[2] At the end of the hearing I gave an immediate oral decision on the application for further discovery. For the application to set aside privilege, Mr Carter provided documents to inspect. This decision combines an edited transcript of my oral decision and my rulings on privilege after inspecting the documents.
Background
[3] Ms Marshall and Mr Bourneville were in a de facto relationship which came to an end. They later reconciled, then married, and then separated permanently in February 2005. In a decision on a caveat lodged by Ms Marshall against a property in Symonds St, Royal Oak, Auckland, the Court of Appeal outlined the factual background:1
[4] Mr Bourneville and Ms Marshall began living in a de facto relationship in February 1996. When the relationship began they each owned a property. Ms Marshall owned a house in Glen Eden. Mr Bourneville owned a house in Wood Bay. Ms Marshall sold her house and moved in with Mr Bourneville.
[5] The parties then purchased three sections at Matarangi on the Coromandel Peninsula. The purchase price was $176,500. Ms Marshall contributed $85,000 to the purchase, being the proceeds from the sale of her house. Mr Bourneville contributed the balance. They built houses on each of the three sections. In September 1997, they sold one of the houses, at 111 Ake Ake Avenue, to Mr Trevor Murray, a friend who had helped Mr Bourneville with the building work. They moved into the house at 113 Ake Ake Avenue. The third house, at Corokia Place was, on 5 December 1997, transferred into Mr Bourneville’s sole name and let as a holiday home.
[6] In 1999 the Corokia Place property was used as security to raise
$160,000 to put towards the purchase of a property at Seabrook
Avenue, New Lynn. Soon afterwards, Mr Bourneville sold the Corokia Place property for $285,000 and used the proceeds to purchase the property at Symonds Street for the same price. Effectively there was a swap. On 1 November 1999, Mr Bourneville
1 Marshall v Bourneville [2013] NZCA 271, [2013] 3 NZLR 766.
established a family trust and transferred the Symonds Street property to the trust.
[7] In January 2000, the parties separated. In July 2000, they sold the remaining Matarangi property, at 113 Ake Ake Avenue, and divided the proceeds equally. A couple of months later, in September 2000, they reconciled and, in February 2001, they married. Ms Marshall became a trustee of the family trust and the Seabrook Avenue property was also transferred to the trust with the purchase price left owing as a debt back to Mr Bourneville. Soon afterwards, in October
2002, the Seabrook Avenue property was sold.
[8] At some point – the date is not disclosed in the material placed before us – Ms Marshall advanced $60,000 to the family trust. We understand this comprised most of her share of the proceeds of sale of 113 Ake Ake Avenue. In the course of the marriage she forgave all but $6,000 of the debt.
[9] In February 2005, the parties separated and have remained apart.
[4] The Court of Appeal also outlined previous court proceedings:
[10] Ms Marshall applied to the Family Court for orders under the Property (Relationships) Act 1976 (the Act). She sought an order setting aside the transfer to the family trust of the Symonds Street and Seabrook Avenue properties, relying on ss 44 and 44C of the Act. A disposition may be set aside under s 44 if made in order to defeat the claim or rights of another. Section 44C allows the Court to order compensation if there has been a disposition of relationship property to a trust which has the effect of defeating the claim or rights of one of the spouses.
[11] Judge de Jong found there was valuable consideration for the transfer of the Symonds Street property to the trust.3 He found that it was the parties’ intention that the Corokia Place property be regarded as the husband’s separate property at a time when they were living in a de facto relationship. These were, said the Judge, bona fide transactions. He found the setting up of the family trust and its purchase of the Symonds Street property as straightforward and consistent with Mr Bourneville managing what he regarded as his separate property by making provision for his children’s future.
[12] Judge de Jong found the Seabrook Avenue property was intended to be Mr Bourneville’s separate property. It was financed by way of a mortgage of $135,000 with the remainder of the purchase price of
$170,000 met by $10,000 from Mr Bourneville’s separate funds and
$25,000 borrowed against the security of the Corokia Place property.
[13] Significantly, however, the Judge determined that the de facto relationship of the parties ended in January 2000. Accordingly, the parties’ property rights at that time would need to be considered by reference to the law as it stood before the Act applied to de facto relationships.
[14] Judge de Jong found there was no evidence to suggest the transfer of the Seabrook Avenue property to the family trust was made with intent to defeat Ms Marshall’s claim or rights in terms of s 44 and that the property was not relationship property for the purposes of s 44C.
[15] The Judge also responded to a submission that the advance of
$60,000 made by Ms Marshall to the trust was a disposition in terms of s 44C. He pointed out that that could be so only if the $60,000
was relationship property. It was not. It was Ms Marshall’s separate
property following the equal division of property following the termination of the de facto relationship. He accepted that the balance of the advance still owing, $6,000, was Ms Marshall’s separate debt.
[16] Judge de Jong’s decision was upheld by Wild J on appeal to the High Court. Wild J observed that, having regard to the Judge’s finding that the de facto relationship of the parties came to an end in
2000, Ms Marshall’s only remedy would be to resort to the common law utilising the principles established in Gillies v Keogh and similar
cases. He commented that Ms Marshall’s dissatisfaction must be
traced back to her transfer of her half interest in the Corokia Place property. He added:
Unless she can challenge that transfer, and have it disregarded for the purposes of her property rights as against the husband, then I do not think she can obtain any relief.
[17] Wild J having refused leave to appeal, Ms Marshall applied for special leave to appeal to this Court. She asked the Court to consider, as a question of law, whether s 4C(2) of the Act, which provides that the Act does not apply to de facto relationships that ended before 1 February 2002, applied in the circumstances. Ms Hart argued that the relationship had not “ended” in January
2000 because it subsequently resumed and blossomed into marriage.
[18] This Court held that an appeal on this basis could not succeed having regard to Judge de Jong’s finding of fact that the initial de facto relationship ended in January 2000 and a new relationship started in September 2000. The Court expressed “considerable sympathy” with Ms Marshall’s position, observing that there appeared to be an issue about whether the contribution she made to the purchase of Corokia Place during the period of the initial de facto relationship had been sufficiently recognised. It suggested that counsel consider whether the injustice that Ms Marshall felt about the property division could be remedied through some mechanism other than the Act, in particular a claim in equity.
[19] Undaunted, and because there is a jurisdictional bar preventing the decision of this Court from being further appealed, Ms Marshall applied for leave to appeal directly from the High Court to the Supreme Court. The Court held that she had been unable to show the requisite extremely compelling circumstances. The Court said that, even if the point of law sought to be raised were arguable, Ms Marshall would still face formidable factual difficulties both because there appeared to have been a settlement of affairs between
the parties after they first separated and because Ms Marshall’s claim under ss 44 or 44C of the Act seemed inconsistent with her act of transferring a predecessor property into Mr Bourneville’s name.
(Footnotes omitted)
[5] Ms Marshall lodged a caveat against the Symonds Street property, alleging implied or constructive trust. Although she had been unsuccessful in the High Court, Ms Marshall succeeded in her appeal. The Court of Appeal held that she had a caveatable interest on the basis of an arguable case for a constructive trust in the Symonds Street property. As a condition of upholding the caveat, the court required Ms Marshall to begin proceedings to establish the substantive interest she claimed. This proceeding was the result.
Procedural directions in this proceeding
[6] In a minute of 26 June 2015 I gave directions, timetabling the case through to a hearing beginning 13 June 2016. I set a close of pleadings date of 14 December
2015. I anticipated that interlocutory applications would have been resolved by then. I directed that any interlocutory applications were to be filed and served by 31 July
2015.
[7] In a later minute of 11 September 2015, I vacated those directions. Ms Marshall had not filed interlocutory applications as to discovery as anticipated. I accepted explanations that it was reasonable to extend time.
[8] The defendants successfully applied to review my decision. In his decision of 15 October 2015, Keane J set aside my directions of 11 September 2015 and reinstated the 26 June 2015 directions. That meant that the case had a close of pleadings date of 14 December 2015. The case is on track for hearing in June 2016.
[9] In my minute of 20 November 2015 I gave directions for the present applications to be heard. Ms Marshall had filed a discovery application in October
2015. I consider that Keane J believed that that discovery application could be disposed of without disturbing the timetable directions which had been reinstated. I gave directions for this application to be heard on 16 December 2015. It was not
possible to hear the application on 16 December 2015. Ms Hart was late in filing submissions. They did not come in until 14 December 2015, which was the date when the defendants were required to file their submissions. In the circumstances, I adjourned the matter until 21 December 2015. That was after the normal sitting days for this court this year. I was keen to dispose of this application so that the parties could have adequate time in which to prepare their evidence in accordance with the directions of June 2015.
[10] Similarly, because of the need to deal with the matter expeditiously, I am giving an immediate decision on the application.
The parties’ cases
[11] In broad terms, Ms Marshall is making claims in equity to interests in assets held by the defendants as trustees of the Victor Frenchie Trust. She derives her claims from her input into the purchase of the Matarangi properties and their later disposal. She says that her half share of the proceeds of sale of the property at 113
Ake Ake Road was applied to the benefit of the trust through the funds advanced. She also alleges that the proceeds of sale of the Matarangi properties found their way into the property at 61 Seabrook Avenue, Glen Eden. She claims also to have contributed generally to the trust assets – in particular the property at Symonds Street. She says that her contributions were not only monetary but there were also other material contributions such as paying mortgages, paying capital expenses, and other support.
[12] Her statement of claim of October 2014 has five causes of action: (a) A resulting trust;
(b) A constructive trust;
(c) Knowing assistance and knowing receipt; (d) Breach of fiduciary duty; and
(e) Breach of trust.
There is a sixth cause of action under s 182 of the Family Proceedings Act 1980. Peters J has ruled that this court has no jurisdiction over that claim.2 Ms Marshall appealed against that decision but I understand that that appeal has been abandoned.
[13] In its caveat decision the Court of Appeal recognised that Ms Marshall’s best claim is likely to be for constructive trust. I regard the other causes of action as being very much variations on a theme. For the purpose of this decision, they do not raise separate discovery issues. In her present pleading, Ms Marshall has targeted Symonds Street and the proceeds of sale of Seabrook Avenue as giving rise to the equitable relief that she claims. I mention that now because in this decision I will need to deal with submissions by Mr Hart proposing that the claim be expanded beyond that.
[14] The defendants filed a new statement of defence on 14 December 2015. As well as putting the plaintiff to proof on large parts of her case and denying many other parts, they now plead certain affirmative defences. They allege delay; they say that there is issue estoppel based on findings by Judge de Jong in the Family Court in the property relationship proceeding; they allege abuse of process; they say that when Ms Marshall forgave debts payable by the Victor Frenchie Trust that counts against her claims; and they say that she does not have any entitlement by virtue of the judgment in the property relationship proceeding.
[15] They have also made a counterclaim. That counterclaim, I am told, is in the same terms as their original counterclaim. They seek damages under s 146 of the Land Transfer Act 1952 because a notice of claim under the Property (Relationships) Act 1976 is alleged to have been lodged without reasonable cause, and they also counterclaim for Ms Marshall occupying the property at 20 Symonds Street without paying rent.
[16] As to discovery, the defendants have made two affidavits of documents: one sworn on 30 June 2015 and another sworn on 19 August 2015.
The application for further discovery
[17] First some general principles. Pleadings determine relevance.3 When determining relevance, it is the case of the party seeking discovery that is to be assumed to be true, not that of the party from whom discovery is sought. Discovery needs to be proportionate to the subject matter of the proceeding.
[18] Rule 8.19 says:
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
[19] There is an initial presumption that an affidavit of documents is complete and correct.4 It is for the applicant to show grounds for believing that a party has not discovered one or more documents which should have been discovered.
[20] In dealing with cases under r 8.19, I have also found it useful to have regard to r 8.17. That rule allows the court to vary the terms of a discovery order if
3 New Zealand Rail Ltd v Port Marlborough New Zealand Ltd [1993] 2 NZLR 641 (CA) at 644.
4 Jones v Monte Video Gas Company (1880) 5 QBD 556 (CA).
attempted compliance shows a need for a variation or a change of circumstances justifies reconsideration. Both rr 8.17 and 8.19 may be invoked when a party contends that further discovery is required. Both rules give the court a discretion to order further discovery and in doing so the court will take into account whether the order sought is proportionate to the subject matter of the proceeding. Generally, if the court is persuaded that the additional discovery sought is relevant and proportionate, it would be a rare case if it does not come within one or other of the rules. Associate Judge Osborne noted in Southland Building Society v Barlow
Justice Ltd,5 that discovery may be an evolving process under which the parties
recognise the need to refine original directions as the case requires.
[21] Ms Marshall says that there are documents that the defendants ought to have discovered which they have not. These are:
(a) tax returns;
(b) a minute book; and
(c) bank statements.
[22] Relevance is conceded. The defendants say that they have made enquiries and searches to locate documents and they have disclosed what documents they have found but are unable to locate further documents. For that defence, r 8.14 is relevant:
(1) A party must make a reasonable search for documents within the scope of the discovery order.
(2) What amounts to a reasonable search depends on the circumstances, including the following factors:
(a) the nature and complexity of the proceedings; and
(b) the number of documents involved; and
(c) the ease and cost of retrieving a document;
(d) the significance of any document likely to be found; and
(e) the need for discovery to be proportionate to the subject matter of the proceedings.
[23] Ms Marshall seeks discovery of Mr Bourneville’s personal tax returns from
1996 to 2005. The defendants have disclosed tax returns only for 1979, 1998 and
2001. The defendants say that their accountant, Mr Cameron, retired and closed his practice in 2005. Mr Blewden and Mr Bourneville went to Mr Cameron’s offices to uplift what documents they could. They have disclosed what documents they have retained. Ms Marshall says that is not good enough. In her submission, Mr Bourneville should have done more to obtain his financial records, given that in
2005 Mr Bourneville had recently separated from her.
[24] Against that, Mr Carter takes the point that in seeking leave to appeal to the Supreme Court, Ms Hart had submitted that Ms Marshall had no claim in equity. I regard that as a forensic argument which would not necessarily give rise to estoppel barring Ms Marshall from later contending against the trust that there are assets to which she can make a claim in equity.
[25] Notwithstanding that, I consider that it is now an exercise in futility to give further directions for the defendants to search for lost tax returns. Enquiries have been made of the Inland Revenue, which has advised that it retains tax returns only for the last seven years. For better or worse, the tax returns cannot now be located and it will be pointless to require the defendants now to disclose them.
[26] I take into account that Mr Bourneville’s personal tax returns are likely to have only peripheral relevance to this proceeding. In constructive trust claims following the Court of Appeal’s decision in Lankow v Rose,6 there may be competition between the parties as to their respective contributions to assets. In establishing relative contributions, each party’s earnings may be relevant. It is only to that extent that tax returns could be relevant. Mr Carter notes that Ms Marshall has not disclosed her tax returns for that period. In effect, the parties are going to be on an equal footing in contending what their relative earnings were, covering the period for which the constructive trust claim is made.
The minute book
[27] In the Family Court, Judge de Jong made findings in respect of a minute book:
The wife claimed that the minute book never existed and the failure by the husband to produce the book not only proves this point but is relevant to the issue of credibility. In this regard I find that it is more probable than not that a minute book did exist at one time.
[28] That is a finding as to past existence. The minute book has not been disclosed in this proceeding. Apparently it was not available at the time of the hearing in the Family Court in 2007. It would be futile to require the defendants to disclose a book that no longer exists. For discovery, parties are not required to create documents. They are only required to disclose documents that already exist. I am advised that the trustees do not currently keep a minute book.
Bank accounts for the Victor Frenchie Trust
[29] Earlier directions have been given for the discovery of bank statements apparently held by the ASB Bank and Kiwibank. The defendants say that they have disclosed what bank statements they have been able to obtain and that they have no others. In an earlier conference I gave directions for non-party discovery applications. Ms Hart later said that arrangements were in hand for the banks to make bank statements available, going back into times earlier than banks are normally understood to hold documents for. It appears that no further progress has been made in the meantime. To deal with any question of the banks making bank statements available, I record that Mr Carter took instructions from Mr Bourneville and Mr Blewden, who are present in court. They confirmed that as trustees they consented to the bank making available to Ms Marshall any and all bank statements of the Victor Frenchie Trust. I trust that that may help matters.
[30] I note that through the application for non-party discovery, Ms Marshall is making more extensive efforts than the defendants are to retrieve the statements. No
doubt that is putting her to added cost. That raises a question whether there should be any costs shifting order. I do not make any costs shifting order in respect of the bank statements at this stage, but I reserve the matter for consideration at a later date.
[31] Cally McWha, former solicitor for Mr Bourneville, has sworn an affidavit showing that she has also made enquiries to establish whether there are any outstanding documents of Mr Bourneville that do require disclosure. I am satisfied from her affidavit that she has made appropriate enquiries and that no relevant documents in her control have been omitted.
[32] That effectively deals with the routine matters under r 8.19.
[33] There are, however, other matters. Ms Hart advised that Ms Marshall wished to expand her claim to attack assets of companies in which Mr Bourneville had an interest. These were AA Safety Rails Ltd and AA Coachworks Ltd. To understand the nature of the claims, it is necessary to go back to Judge de Jong’s decision in the Family Court.
[34] Mr Bourneville’s shareholdings in AA Coachworks Ltd and AA Safety Rails Ltd were held to be relationship property. An accountant instructed by Mr Bourneville gave evidence as to the value of the shareholding. That was found to be
$44,100.00. In establishing the value of the shareholding, the accountant had provided in her report statements of financial position for the two companies. In both companies there were loans from related parties. For AA Coachworks Ltd the loans from related parties included a debt of $43,426.00 to the Victor Frenchie Trust. For AA Safety Rails Ltd there was a loan of $15,000.00 from the Victor Frenchie Trust. Those are some of the related party liabilities. The related party liabilities of AA Coachwork Ltd came to some $300,000.00. Those liabilities had an impact on the equity which was found to be in the order of $28,000.00. Ms Hart now wants to contend that the sums allocated for debt in those companies can be put to one side so that the resulting equity in the companies can be re-established in order to give Ms Marshall an increased claim.
[35] There are a number of problems with this new approach:
(a) Such a claim is not pleaded. The close of pleadings date has passed and it is now too late for Ms Marshall to amend her pleadings.
(b)This matter is really a relationship property claim. Relationship property claims are within the exclusive jurisdiction of the Family Court unless they are transferred to this court under s 38A of the Property (Relationships) Act.7
(c) The Family Court has already made final decisions in respect of Mr Bourneville’s shareholding in those companies. Not only was that established finally in the Family Court, but there were appeals from the Family Court decision. It is clear from paragraphs [46] - [48] of Judge de Jong’s decision that the question of the debt to the Victor Frenchie Trust was an issue in the Family Court. Given the finality of the Family Court judgment, this court cannot re-open the matter.
[36] Ms Hart considers that there might be some basis for alleging fraud on the part of Mr Bourneville so that the findings of the Family Court can be re-opened. I have heard nothing so far to suggest that there has been any fraud on the part of Mr Bourneville. But, even if there had been any fraud, the appropriate remedy is to apply in the Family Court to set aside its judgments on the ground of fraud. In proceedings to set aside judgments obtained by fraud the appropriate remedy is to
apply in the court in which the judgment was obtained.8
[37] Ms Hart referred to the recent decision of the United Kingdom Supreme Court in Sharland v Sharland.9 That was a case in which consent orders settling proceedings were set aside by reason of alleged fraudulent misrepresentation or non- disclosure by one of the parties. That case came to the Supreme Court on appeal from the Family Court. It is not authority that another court of first instance, not the court in which judgment was regularly given, can hear an application to set aside a
judgment because it was fraudulently obtained. It does not help the plaintiff.
7 Property (Relationships) Act 1976, s 22.
8 Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd [2012] NZSC 94, [2013]
1 NZLR 804 and O’Hagan v Waitomo Adventures Ltd [2014] NZHC 905.
9 Sharland v Sharland [2015] UKSC 60, [2015] 3 WLR 1070.
[38] It is important to come back to the proper focus of this case under the current pleadings. Ms Marshall targets the Symonds Street property and the proceeds of sale of the Seabrook Avenue property. The financial statements for AA Coachwork Ltd and AA Safety Rails Ltd show funds advanced by the trustees of the Victor Frenchie Trust. That may help her case in showing that trust assets have been applied to those companies by current account advances. It may assist her in establishing that there is some basis for a claim in respect of the proceeds of sale of the Seabrook Road property. But it does not show any need to require more extensive discovery. The sale price of the Seabrook Road property is established. The trustees have not disclosed what has become of the proceeds of sale of the property, but the companies’ statements of financial position do give a clue.
[39] The shortage of information as to how the proceeds of sale have been applied is not fatal for the plaintiff’s case. She may show that she has a constructive trust claim in respect of the Seabrook Avenue property. She may also have a claim in respect of the proceeds of sale. The claim does not disappear simply because it is unknown how the proceeds were applied. The trust has other assets: the Symonds Street property. Any claim in respect of the Seabrook Avenue proceeds may be met out of the Symonds Street property. The court will also have a discretion in equity as to interest in respect of any successful claim in respect of the Seabrook sale proceeds.
[40] Given the advanced state of this case and the need to keep discovery in proportion, I do not see a need to hound the defendants as to how the proceeds of sale of Seabrook Road were applied. At this stage of the case, that would be disproportionate.
Application to set aside privilege claim
[41] Mr Carter advised that the defendants have waived privilege in respect of an extensive number of documents. That may be appropriate. For a period Ms Marshall was a trustee of the Victor Frenchie Trust. As a trustee, she had a right of access to records of the trust. That includes a right to access legal advice given to the trustees. Mr Carter indicates that the waiver of privilege goes to documents
which relate to transactional matters. He says that privilege has been claimed for legal advice going to contentious matters and for advice given to Mr Bourneville personally as opposed to advice given to him as a trustee.
[42] At the end of the hearing I was provided with copies of five documents in respect of which the defendants continued to claim privilege. I numbered them 1-5, although I understand them to be identified with other references in the affidavits of documents.
[43] The defendants claim privilege under s 54 of the Evidence Act 2006:
54 Privilege for communications with legal advisers
(1) A person who obtains professional legal services from a legal adviser has a privilege in respect of any communication between the person and the legal adviser if the communication was—
(a) intended to be confidential; and
(b) made in the course of and for the purpose of—
(i) the person obtaining professional legal services from the legal adviser; or
(ii) the legal adviser giving such services to the person.
1 Letter from Irving McWha Ransfield of 22 November 2001
[44] The defendants waive privilege for this document. It is to be disclosed.
2 Page with notes dated 17-8-97 and 20-8-97
[45] These handwritten notes record conversations with Mr Bourneville in respect of a proposed transaction with “Trevor”. That concerns a transaction in respect of one of the Matarangi properties. The Matarangi properties were a joint venture between Mr Bourneville and the plaintiff. There is a joint privilege. Ms Marshall is entitled to see the document. While the communications are privileged, Ms Marshall shares that privilege under s 66(1) of the Evidence Act and is accordingly entitled to see the document.
3 Handwritten undated note
[46] This handwritten undated note refers to proposed transactions by Mr Bourneville. The matters are personal to Mr Bourneville. Ms Marshall does not have joint privilege. Disclosure is not required.
4 Handwritten note
[47] This is a handwritten note of a telephone message from Mr Bourneville. It does not seem relevant but if it is relevant, privilege applies. It concerns legal services for Mr Bourneville personally.
5 Handwritten note headed “Victor Frenchie Trust”.
[48] While the handwritten note appears to relate to management of the Symonds Street property and is made in connection with providing professional legal services to the trustees of the Victor Frenchie Trust, it does not appear relevant to the issues in this proceeding. Disclosure is not required.
6 Handwritten note for the Victor Frenchie Trust dated July 2012
[49] This document post-dates the relevant periods in this proceeding. Ms Marshall was not a trustee at the time of the document. It deals with management of trust matters, but it is not relevant to this proceeding and is, in any event, covered by privilege.
Result
[50] Documents 1 and 2 above are to be made available for inspection by Ms Marshall. I reserve for future consideration whether a costs sharing order should be made for the additional steps by Ms Marshall to obtain trust bank statements from the ASB Bank and Kiwibank. Aside from those matters, the applications under rr
8.19 and 8.25 of the High Court Rules are dismissed.
[51] I invite the parties to confer as to costs. I record that Ms Marshall has legal aid. If the parties cannot agree on costs for this application, memoranda may be filed for a decision on the papers.
………………………………….
Associate Judge R M Bell
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