McCabe v McCabe

[2016] NZHC 456

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2012-488-255 [2016] NZHC 456

BETWEEN

BRUCE MCCABE AND IVAN

MCCABE First Plaintiffs

AND

THISTLE FARMS LIMITED Second Plaintiff

AND

ROBERT MCCABE First Defendant

AND

IRENE MISIEPO Second Defendant

AND

NEIL MCCABE Third Defendant

AND

HEATHER POMFRETT Fourth Defendant

AND

WEBB ROSS JOHNSON TRUSTEES Fifth Defendant

Hearing:	5 February 2016
Appearances:	G J Judd QC for the Plaintiffs First and Second Defendants in person No appearance for the Third, Fourth and Fifth Defendants
Judgment:	16 March 2016

JUDGMENT OF THOMAS J

This judgment was delivered by me on 16 March 2016 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Solicitor:

Wells & Co, Auckland for plaintiffs.

MCCABE & ORS v THISTLE FARMS LIMITED & ORS [2016] NZHC 456 [16 March 2016]

[1]      The first defendant, Robert McCabe, has applied for variation of discovery orders (Orders) made by Christiansen AJ on 28 May 2015.  He is supported in his application by the second and third defendants.  All of them have filed submissions and Robert McCabe filed an affidavit in support.

[2]      The application is opposed by the plaintiffs and affidavits in support of the opposition have been filed.

[3]      The fifth defendant has been excused from attendance.  The fourth defendant has taken no steps in the proceeding.

The application

[4]      The first defendant applies for orders that:

(a)       The directions in the Orders be more comprehensive in:

(i)discovery   categories   being   established   for   the   tailored discovery;

(ii)incorporating, and requiring the plaintiffs to use, the listing and exchange protocol set out in Part 2 of Schedule 9 of the High Court Rules, as is available under r 8.12(2)(a);

(iii)requiring the plaintiffs to provide an affidavit of documents as required under r 8.15, and a schedule to comply with r 8.16 and the listing protocol;

(iv)requiring the plaintiffs to provide the documents required in the r 8.32 notice served upon the plaintiffs by the defendants; and

(v)      requiring Bruce McCabe to “provide formal proof (discovery)

for the standing(s) claimed in this proceeding as raised in the

defence of the defendants but not replied to by the plaintiffs as noted  in  the  Minute  of  Associate  Judge  Doogue  dated

1 October 2015.”

(b)      The Court make any orders it deems necessary to ensure:

(i)that the purported BRMFT Trustees be required to provide audited  financial  statements  since  they  began  acting  as Trustees, as well as the source documents for those statements, and copies of all meetings, documents they have signed and other documents that require specific joint authorisation; and

(ii)      that Bruce McCabe is required to provide proof of standing as

raised in the Defendants’ statements of defence.

(iii)that Bruce McCabe is required to provide proof of standing for the 300 shares he purports to own.

[5]      The grounds cited in the application are that:

(i)the Associate Judge did not establish the categories for tailored discovery to reflect the issues in the proceedings;

(ii)      listing protocol as set out in part 2…