MPZ One Limited (Formerly Mike Pero Marketing Limited) v Mike Pero Mortgages Limited

[2017] NZHC 2107

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2015-409-000243 [2017] NZHC 2107

BETWEEN

MPZ ONE LIMITED (FORMERLY

MIKE PERO MARKETING LIMITED) First Plaintiff

AND

MIKE PERO Second Plaintiff

AND

MIKE PERO MORTGAGES LIMITED Defendant

Hearing:	22 May 2017 and 31 August 2017
Appearances:	J P Forsey for Plaintiffs G P Blanchard QC and J E M Lethbridge (on 22 May only) for Defendant
Judgment:	31 August 2017

JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

[1]      In this proceeding the plaintiffs, MPZ One Limited, formerly Mike Pero Marketing Limited (MP Marketing) and Mr Pero, sue the defendant, Mike Pero Mortgages Limited (MP Mortgages), for alleged breach of a consultancy agreement dated 5 March 2004.   On Monday 22 May I heard argument on an application by MP Marketing  and  Mr  Pero  for  further  and  better  discovery  to  be  given  by MP Mortgages.

[2]      The  documents  sought  in  the  original  application  dated  31  March  was extensive.  By the time that argument had concluded on 22 May it was clear to the Court that further input from counsel was going to be necessary, and as a result

further directions were made with the intent that the categories of documents sought

MPZ ONE LTD (FORMERLY MIKE PERO MARKETING LTD) v MIKE PERO [2017] NZHC 2107 [31

August 2017]

by MP Marketing and Mr Pero would be refined.  A Minute was issued on 23 May recording those directions.

[3]      An amended application was filed and served on 31 July together with a further affidavit from Mr Pero.  A notice of opposition was filed, and an affidavit in opposition from Mr Ma, a director of the defendant (MP Mortgages).

[4]      In the amended application the following documents were sought:

Board Papers and Meeting Minutes

1.1.1Complete Board Papers and Minutes of Board Meetings and internal correspondence  relating  to  the Board Meetings  (including internal correspondence relating to Board Papers and Meeting Minutes) for the following relevant periods:

a)  Board Papers and Meeting Minutes from January 2004 to May 2004;

b)  Board Papers and Meeting Minutes from January 2006 to August

2006;

c)  Board Papers and Meeting Minutes from June 2010 to April 2011;

and

d) Any further Board Papers and Meeting Minutes where there is any mention of the consultancy agreement or consultancy arrangements (including  but  not  limited  to  marketing  activities  undertaken  by Mr Pero).

Documents relating to marketing services

1.1.2Documents related to instructions to the plaintiffs in relation to the consultancy marketing services that Mike Pero Mortgages wanted the plaintiffs to carry out and their performance.

Correspondence related to 1 February 2011 email

1.1.3    Correspondence from the December 2010 and  January /  February

2011 period related to the 1 February 2011 email circulated by Ruth Gardiner including (but not limited to) emails to/from Mr Rollason and Mr Ma.

Company bank records

1.1.4Bank records of the defendant showing payments to the plaintiffs throughout the relevant period.

[5]      The affidavit of Mr Pero was directed in some detail at why in his opinion the additional documents sought would have been held by MPM and should still be held now.  I need not summarise his evidence on this point because the affidavit of Mr Ma in opposition deals with it in some detail.   The thrust of his evidence is that the documents sought are not any longer held by MPM.   MPM’s records have been reviewed and are the basis for this conclusion.   MPM has however contacted its bankers and sought copies of bank statements as requested in para 1.1.4 of the amended application.  It does not yet know whether the Bank is able to provide those statements.   There does not seem to be any evident reason why it could not and Mr Blanchard accepted that when (and if) the statements are received they will be discovered.

[6]      In view of the position disclosed in Mr Ma’s affidavit Mr Forsey asks that the Court direct that a further affidavit of documents be sworn on behalf of MPM exhibiting the Bank records and any other documents which on reflection meet the requirements of discovery, within the categories of documents sought in the amended application.  I agree in principle that this is the appropriate course.  Mr Blanchard did not suggest otherwise.

[7]      Mr Forsey asked for a direction that the further affidavit on behalf of MPM be  sworn  by Mr  Ma.    In  the  circumstances  of  this  case  I am  satisfied  that  is appropriate.   It is Mr Ma who has engaged, by affidavit, in this application and

whose affidavit in opposition discloses the position that MPM has established in relation to the documents sought by MP Marketing and Mr Pero.  I direct that Mr Ma swear the affidavit in accordance with the direction which follows.

[8]      I direct MM to file and serve an affidavit of documents that complies with the requirements of r 8.15 of the High Court Rules and in particular fulfils the requirements of r 8.15(2).  Specifically, it is to refer to the documents in each of the categories described in the amended application when complying what r 8.15 (2)(c).

[9]      If bank statements as sought are received from MPM’s bank they will be listed in the affidavit but if not, details of the request and the reason given by the Bank for not supplying the statements will be recorded in the affidavit.

[10]     To give time for the bank statements to be received, or for the bank to provide a negative response, the affidavit is to be filed and served within 20 working days.

[11]     The Bank statements need not be annexed to the affidavit.  Rather, they will be provided as a full set either in hard copy, if that is the form in which the Bank supplies them, or electronically by such means as shall be agreed between counsel.

[12]     Costs are reserved.  If not agreed counsel for a party seeking costs may file a memorandum within 15 working days, of no more than four pages in length, setting out  the  costs  sought,  and  the  reasons.    Counsel  may  file  a  memorandum  in opposition within a further five working days.  These will then be considered on the papers.

Associate Judge Matthews

Solicitors and Solicitors Duncan Cotterill, Christchurch Lowndes, Auckland

G P Blanchard QC, Auckland