Marshall v Bourneville - [2015] NZHC 3364

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 Defendants

Judgment:

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…

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: [2015] NZHC 3364
Decision Date: 23 December 2015

CaseChat Overview and Summary

Christine Marshall applies for further discovery under rule 8.19 of the High Court Rules and to set aside under rule 8.25 claims to privilege made by the defendants in their affidavits of documents. The defendants, trustees of the Victor Frenchie Trust, claim privilege over certain documents. The plaintiff contends that there are documents that the defendants ought to have discovered which they have not. 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. The court takes into account the relevance and proportionality of the discovery sought and determines that it is now an exercise in futility to give further directions for the defendants to search for lost tax returns. The court also finds that it would be futile to require the defendants to disclose a book that no longer exists. The court notes that through the application for non-party discovery, the plaintiff is making more extensive efforts than the defendants are to retrieve the statements and reserves the matter for consideration at a later date. The court dismisses the applications under rules 8.19 and 8.25 of the High Court Rules but orders that certain documents be made available for inspection by the plaintiff. The court invites the parties to confer as to costs.

Orders