IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2013-404-3475 [2015] NZHC 1462
IN THE MATTER OF the liquidation of NORTHERN CREST
INVESTMENTS LIMITED (IN LIQ)
BETWEEN
ANTHONY JOHN MCCULLAGH AND STEPHEN MARK LAWRENCE Applicants
AND
ROBT. JONES HOLDINGS LIMITED Respondent
Hearing: 19 February 2015 Appearances:
D Chesterman for the Respondent
B P Keene QC and L Van for the ApplicantsJudgment:
26 June 2015
JUDGMENT OF ASSOCIATE JUDGE R M BELL
This judgment was delivered by me on 26 June 2015 at 4:00pm
Pursuant to Rule 11.5 of the High Court Rules
………………………………………….
Registrar/Deputy Registrar
Solicitors:
Anthony Harper, Auckland, for Applicants
Gillespie Young Watson, Lower Hutt, for Respondent
Counsel:
Brian Keene QC, Auckland, for Applicants
Damian G Chesterman, Auckland, for Respondent
MCCULLAGH AND LAWRENCE v ROBT. JONES HOLDINGS LIMITED [2015] NZHC 1462 [26 June
2015]
[1] The respondent applies for discovery orders:
(a) For particular discovery of documents under r 8.19 of the High Court
Rules; and
(b) Setting aside the applicants’ claim to privilege under r 8.25.
[2] This is a voidable transaction proceeding. The liquidators of Northern Crest Investments Ltd, ordered into liquidation on 2 June 2011, apply to set aside payments made to Robt. Jones Holdings Ltd between 22 January 2010 and
5 November 2010 totalling $751,941.12. So far, the liquidators have provided two affidavits of documents. The first one, sworn on 16 April 2014, runs for 40 pages. A supplementary affidavit sworn on 28 May 2014 runs for 10 pages. The liquidators say that they have disclosed over 1400 pages of documents. Notwithstanding that, Robt. Jones says that discovery is incomplete and the liquidators have made an invalid claim to privilege.
Discovery in voidable transaction cases
[3] Discovery orders are not standard in voidable transaction proceedings. That is because voidable transaction claims must be brought by originating application.1
Unlike general proceedings brought by notice of proceeding and statement of claim, discovery is not available as of right in an originating application. In a general proceeding a judge must make a discovery order unless satisfied that the proceeding can be justly disposed of without any discovery.2 Part 19, which deals with originating applications, is directed at providing a speedy and inexpensive mechanism. On an application for directions the court may in its discretion order
discovery.3
1 High Court Rules, r 19.2(c).
2 Rule r 8.5.
3 Rules 7.43A and 19.11.
[4] In Katavich v Meltzer4 Duffy J held that there is a reluctance to order discovery, except in a narrow band of marginal cases where the court has genuine difficulty in determining whether a party has made out its case, and where there is substantial reason to believe that discovery would or might well assist that determination. The judgment referred to summary judgment cases and applications under s 290 of the Companies Act to set aside statutory demands. In those cases, the court is typically concerned only with whether the plaintiff has established that the defendant has no defence, or whether a debt…
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- [2015] NZHC 1462
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