Miro Property Holdings Limited v Ling 2 Investments Limited HC Wellington Civ-2003-485-1322
[2007] NZHC 1691
•19 March 2007
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2003-485-1322
BETWEEN MIRO PROPERTY HOLDINGS LIMITED
Plaintiff
ANDLING 2 INVESTMENTS LIMITED First Defendant
ANDC B RICHARD ELLIS LIMITED Second Defendant
Judgment: 19 March 2007 at 10.00 am
In accordance with r540(4) I direct the Registrar to endorse this judgment with a delivery time of 10 am on the 19th day of March 2007.
DECISION OF ASSOCIATE JUDGE D.I. GENDALL
[1] This decision relates to further discovery issues which have arisen in this proceeding.
[2] At paragraphs (29) and (31) of my Judgment dated 23 November 2006 I noted a request made from counsel for the plaintiff that the defendant make available to the Court for inspection certain “Tenant and Administration” files which were noted in those paragraphs.
[3] Counsel for the defendant has now made available the following Tenant and
Administration files which it says represents the files noted in para [2] above:
a) Brazilian Embassy Correspondence File – 335 GOV
b) Johnston Lawrence Correspondence File – 335 JOH
MIRO PROPERTY HOLDINGS LIMITED V LING 2 INVESTMENTS LIMITED AND ANOR HC WN CIV-
2003-485-1322 19 March 2007
c) Landmark Education Correspondence File – 335 LAN
d) The Market Place Company Correspondence File – 335 MAR
e) NZ Meat Industry Association Correspondence File – 335 NEW
f) Valuation Correspondence File – 335 417
g) Administration Correspondence File – 335 480
h) Air-conditioning Building & Maintenance File – 335 230
i) Repairs & Maintenance Building & Maintenance File – 335 330 j) Miscellaneous Building & Maintenance File – 335 400
[4] I have now had an opportunity to consider the material contained in the various files noted in the preceding paragraph for relevance and admissibility.
[5] The material on these files is extensive. Obviously it relates to the Wool
House building and the ownership of that building by Ling 2 Investments Limited. [6] I now turn to deal with each of these files in question.
Brazilian Embassy Correspondence File
[7] As I noted at paragraph [5] of my Judgment of 23 November 2006, the plaintiff’s claim concerning the Brazilian Embassy relates to a fit-out loan made to the Embassy at the commencement of its tenancy with its original landlord the New Zealand Wool Board. The plaintiff’s claim is that the monthly payments of fit-out loan which were in fact being paid to the New Zealand Wool Board via by the defendant had been erroneously represented by the defendant as rental payments in its tenancy schedule provided during sales negotiations and ultimately annexed to the sales contract between the parties. It is this misrepresentation which is the crux of the plaintiff’s claim concerning the Brazilian Embassy. The defendant’s contention,
as I understand it, is that the plaintiff was made aware of the fit-out loan component prior to entering into the sales contract.
[8] This file contains a range of correspondence, tax invoices, statements, memos and credit notes between Ling 2 Investments and the Brazilian Embassy. Much of the correspondence, statements and the invoices issued deals directly with the rental payments and fit-out loan repayments. In terms of the wide Peruvian Guano test of relevance, my view is that the material on this file 335 GOV has potential relevance to the plaintiff’s claim and should be discovered. If there are issues of confidentiality or privilege concerning any documents on this file, then these can be the subject of an application to the Court along similar lines to that envisaged by MacKenzie J in para (7) of his Minute in this matter dated 20 February 2007.
Johnston Lawrence Correspondence File 335 JOH
[9] Having considered the material on this file, much of it relates to a rent review negotiation with this tenant, concluding of a new rental and a Deed of Variation, and general lease administration matters. That material is not relevant here to the pleaded claim made by the plaintiff in this proceeding. Documents on this file numbered 752, 753, 754, 755, 756 and 757 however do relate at least in part, to the tenants’ complaints as to “the current poor working operation” of the lifts in Wool House and the landlord’s responses. Part of the plaintiff’s claim in this proceeding relates to defects in the lifts and that said these documents in my view are clearly relevant to this aspect. There is to be an order for discovery but only with respect to those documents 752, 753, 754, 755, 756 and 757 on this file.
Landmark Education Correspondence File 335 LAN
[10] Having considered the material on this file, much of it seems to relate to various requests to continue air-conditioning after hours for courses run by the tenant and disputed invoices for those charges. I cannot see the relevance of that material here to the pleaded claim made by the plaintiff in this proceeding. Documents on this file numbered 759, 764, 765, 766, 767, 768, 775, 777 and 778 however, being
faxes from the tenant to the second defendant and replies and correspondence, in part at least relate to alleged faults in the air-conditioning system (fumes, smoke and noise). Part of the plaintiff’s claim in this proceeding alleges defects in the air- conditioning system so these documents in my view are relevant here. There is to be an order for discovery but only with respect to those documents 759, 764, 765, 766,
767, 768, 775, 777 and 778 on this file.
The Market Place Company Correspondence File 335 MAR
[11] Having considered the material on this file, again much of it relates to general tenant/landlord administration matters, after-hours air-conditioning requests, building naming rights, car parking and deemed lease assignment matters. I cannot see the relevance of that material here to the pleaded claim made by the plaintiff in this proceeding.
[12] Documents on this file numbered 708, 710, 711, 712, 713 and 714 however all relate to “official complaints” and concerns expressed by this tenant over problems and malfunctions with the Wool House lifts. Again, part of the plaintiff’s claim here relates to defects in the lifts and these documents in my view are clearly relevant to this. There is to be an order for discovery but only with respect to those documents 708, 710, 711, 712, 713 and 714 on this file.
NZ Meat Industry Association Correspondence File – 335 NEW
[13] The plaintiff’s tenth cause of action in its Amended Statement of Claim pleads breach of contract on the part of the defendant with respect to actions on a rent review matter for the Meat Industry Association lease which was said to breach a provision in the Sale Agreement between the parties. Significant material on this file 335 NEW does relate to this review of rental under the Meat Industry lease and I am satisfied therefore that these documents are relevant to the pleaded claim made by the plaintiff in this part of its proceeding. There is to be an order for discovery with respect to the documents on this file.
Valuation Correspondence File 335 417
[14] The material on this file includes a September 2000 and June 2002 Valuation Report on Wool House, a 2001 Property Information Summary, several notices of Rating Valuation, objections lodged and correspondence thereto. Having considered the material on this file which seems to relate solely to historical valuation issues, I cannot see its relevance here to the plaintiff’s claim in this proceeding. That claim seeks specific amounts for damages and compensation for lifts and air-conditioning repairs and specified amounts first for underpaid rental related to a fit-out loan, and secondly for non-reviewed rental. This does not in any way relate to the Wool House valuations. That said, there is to be no order for discovery with respect to this file.
Administration Correspondence File – 335 480
[15] This file contains a range of memoranda, correspondence, facsimiles and other material concerning a diverse group of matters. These include lease documentation for the building, certificate of compliance matters, upgrading of facilities such as toilets, lifts maintenance and fire protection contracts, management contract details between the defendant and CB Richard Ellis Limited and related agency matters.
[16] As I have noted, part of the plaintiff’s claim in this proceeding is in respect of the lifts and air-conditioning in the building. There are frequent mention of these issues and repairs and maintenance generally in a number of documents on this file.
[17] Subject to the confidentiality matters I will come to shortly, I am satisfied that the material in this Wool House administration correspondence file is again potentially relevant to this proceeding in terms of the wide Peruvian Guano test and should be discovered with an appropriate confidentiality undertaking.
Air-conditioning Building & Maintenance File – 335 230
[18] Part of the plaintiff’s claim here relates to alleged defects claimed in the air- conditioning compressor units and extractor fans. There can be no doubt, in my view, that this file 335 230 and the material in the file which seems to relate to a range of matters involving air-conditioning repairs, maintenance and problems is all potentially relevant to the plaintiff’s claim in terms of the wide Peruvian Guano test.
[19] An order for discovery of all material on this file is to follow.
Repairs & Maintenance Building & Maintenance File – 335 330
[20] The material on this large file includes historic “Building Condition Reports”, letters, memoranda, e-mails, invoices, service contracts and documentation concerning a wide range of repairs and maintenance matters relating to various aspects of the Wool House building. The file is specifically entitled “Repairs and Maintenance Building and Maintenance File”. Lifts and air-conditioning matters are mentioned in a number of the documents.
[21] As part of the plaintiff’s complaint in this proceeding relates to maintenance and building matters concerning the lifts and the air-conditioning facilities, some of the material on this File 335 330, in my view is again potentially relevant here. The material on this file is to be discovered.
Miscellaneous Building & Maintenance File 335 400
[22] For similar reasons to those outlined in paragraphs [20] and [21] above, the material on this large file, in my view, should also be discovered. It also is specifically named to deal with “Miscellaneous Building and Maintenance” matters.
Orders
[23] Orders are now made, therefore, in the following terms:
a) That within 20 working days from the date of this decision, the defendant is to produce for inspection by the plaintiff:
i) All documentation on the Brazilian Embassy Correspondence
File – 335 GOV
ii) Documents numbered 752, 753, 754, 755, 756 and 757 on
Johnston Lawrence Correspondence File – 335 JOH
iii)Documents numbered 759, 764, 765, 766, 767, 768, 775, 777 and 778 on Landmark Education Correspondence File – 335
LAN
iv) Documents numbered 708, 710, 711, 712, 713 and 714 on the
Market Place Company Correspondence File – 335 MAR
v) All documentation on NZ Meat Industry Association
Correspondence File – 335 NEW
vi) All documentation on Administration Correspondence File –
335 480
vii)All documentation on the Air-conditioning Building & Maintenance File – 335 230
viii)All documentation on the Repairs & Maintenance Building & Maintenance File – 335 330
ix) All documentation on the Miscellaneous Building & Maintenance File – 335 400
[24] If the defendants contend that matters on these files are confidential or commercially sensitive and should not be disclosed or disclosed only to counsel and the experts appointed for the plaintiff, then leave is reserved for the defendants to approach the Court for an appropriate confidentiality or restriction order to be made
with respect to inspection of the individual documents affected. And, leave is reserved for either party to approach the Court on two days notice if further assistance on discovery matters is required.
“Associate Judge D.I. Gendall”
Solicitors:
Mike Garnham, Barristers & Solicitors, Wellington for Plaintiff
Mulholland Rickit, Wellington for Defendants
0
0
0