O'Brien v Parkinson - [2021] NZHC 3161

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-002814

[2021] NZHC 3161

UNDER Companies Act 1993

BETWEEN

LOUISA JANE O’BRIEN on behalf of GENERAL DYNAMICS CORPORATION LIMITED

First Plaintiff

LOUISA JANE O’BRIEN
Second Plaintiff

AND

KEVIN PARKINSON

First Defendant

KEVIN PARKINSON as trustee of KEVIN PARKINSON FAMILY TRUST
Second Defendant

ANNA VALERIENA KEDRINSKAIA and LISTON TRUSTEE SERVICES LIMITED

Third Defendants

Hearing:
30 August 2021

Further submissions received: 1 and 20 October 2021

Appearances:

J M McCartney for Plaintiffs (2814) and First Defendant (2351) S Morris for Defendants (2814) and Plaintiff (2351)

Judgment:

24 November 2021

JUDGMENT OF ASSOCIATE JUDGE P J ANDREW

[Disallowing claim of privilege and application for further discovery by Mr Parkinson

O’BRIEN v PARKINSON & ORS [2021] NZHC 3161 [24 November 2021]

CIV-2020-404-002351

UNDER

The Property (Relationships) Act 1976

BETWEEN

KEVIN JAMES PARKINSON

Plaintiff

AND

LOUISA JANE O’BRIEN

First Defendant

GENERAL DYNAMICS LIMITED
Second Defendant

KEA GNSS LIMITED
Third Defendant

KEVIN JAMES PARKINSON as trustee of the KEVIN PARKINSON FAMILY TRUST

Fourth Defendant

LOUISA JANE O’BRIEN as trustee of the LOUISA PARKINSON FAMILY TRUST

Fifth Defendant

ANNA VALERIENA KEDRINSKAIA and LISTON TRUSTEE SERVICES LIMITED

as trustees of the ANNA KEDRINSKAIA TRUST

Sixth Defendants

This judgment was delivered by Associate Judge Andrew on 24 November 2021 at 3.00 pm
pursuant to r 11.5 of the High Court Rules Registrar / Deputy Registrar

Date…………………….

Introduction

[1] These are relationship property proceedings between Louisa O’Brien and Kevin Parkinson, who separated in 2013. Ms O’Brien applies for orders setting aside Mr Parkinson’s claim to solicitor–client privilege over certain documents pursuant to s 67 of the Evidence Act 2006.1 She contends that the communications and documents at issue were prepared for a dishonest purpose.

[2] Ms O’Brien’s complaint is that Mr Parkinson and his new partner, Ms Kedrinskaia, and the Anna Kedrinskaia Trust,2 deliberately concealed relationship property dispositions of $90,000 to 21 Heuchan Lane, Wānaka3 (comprising $30,000 paid as an initial deposit, and $60,000 drawn out from the successor company of GDC in the mortgage payments). Ms O’Brien further says that she and GDC were deliberately deceived as to the true position over the application of property and profits and that Mr Parkinson concealed the true beneficial ownership of the Property.

[3] In my minute of 13 September 2021, I ordered Mr Parkinson and the trustees of the AKT4 to provide the contested documents to the Court for inspection.5

[4] Having now inspected the documents, this judgment contains my decision on whether I should disallow Mr Parkinson’s claim of privilege over them. The critical issues are whether Ms O’Brien has established a prima facie case of dishonest purpose and whether the communications and documents at issue were prepared as part of the instrumentation of the alleged dishonest purpose.

[5] Separately, Mr Parkinson applies for orders for particular discovery against Ms O’Brien.6 This judgment also contains my decision on that application.

1      The Act.
2      The AKT.
3      The Property.
4      The AKT…

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.

Continue reading O'Brien v Parkinson

Details

AGLC: O'Brien v Parkinson [2021] NZHC 3161
Case: [2021] NZHC 3161
Decision Date: 24 November 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Associate Judge Andrew dealt with two applications in the relationship property proceedings between Louisa Jane O'Brien and Kevin Parkinson. The first application was by Ms O'Brien, seeking to set aside Mr Parkinson's claim of privilege over certain documents pursuant to section 67 of the Evidence Act 2006. The second application was by Mr Parkinson for particular discovery against Ms O'Brien. The critical issues for the court were whether Ms O'Brien had established a prima facie case of dishonest purpose and whether the communications and documents at issue were prepared as part of the instrumentation of the alleged dishonest purpose. The court also considered Mr Parkinson's application for particular discovery against Ms O'Brien.

The court found that Ms O'Brien had established a prima facie case of dishonest purpose as the contested documents supported her contentions that Mr Parkinson and Ms Kedrinskaia concealed relationship property dispositions and/or the application of property and profits of GDC. The court concluded that the threshold under section 67 of the Act was met, and granted Ms O'Brien's application to set aside privilege, but only in relation to the four documents identified. The court found that there was little merit to Mr Parkinson's application for further and better discovery against Ms O'Brien, and that it was made in breach of timetable directions previously made by the court. The court decided that there should be no order as to costs, as both parties had had a measure of success.

Orders