O'Neil v Beattie
[2021] NZHC 17
•25 January 2021
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2019-409-339
[2021] NZHC 17
BETWEEN ANDREW JAMES O’NEIL
First Plaintiff
AND
MOBY TRUSTEES LIMITED
Second Plaintiff
AND
ANDREW ROSS BEATTIE and LOUIS PETRUS DIRKZWAGER
Defendants
Hearing: (Determined on the papers) Counsel:
M J Wallace for the Plaintiffs P J Shamy for the Defendants
Judgment:
25 January 2021
JUDGMENT OF ASSOCIATE JUDGE LESTER
This judgment was delivered by me on 25 January 2021 at 2.30 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar 25 January 2021
O’NEIL v BEATTIE [2021] NZHC 17 [25 January 2021]
[1] In an interim judgment dated 30 October 2020,1 I addressed five categories of documents sought in an application for further discovery brought by the defendants. The judgment was interim because of an issue that is no longer material. On that basis, counsel for the defendants now seeks costs on a 2B basis submitting that costs should follow the event as, essentially, the defendants succeeded in obtaining orders in respect of all but one of the five categories of documents sought in the application. Defendants’ counsel therefore seeks costs on a 2B basis with a reduction of one-fifth to reflect the one category of discovery that was not ordered.
[2] In addition, the plaintiffs had filed an application for discovery that was later withdrawn and the defendants seek costs in relation to their notice of opposition necessitated by that application.
[3] Counsel for the plaintiffs, Mr Wallace, resists costs. His submission is that costs should lie where they fall.
[4] Firstly, in relation to the plaintiffs’ application for further discovery, defendants’ counsel notes that as a result of the application, two further affidavits were filed on behalf of the defendants which explained to the satisfaction of the plaintiffs why the categories of documents the plaintiffs sought had not been included in the discovery previously provided. The defendants’ affidavits answered the plaintiffs’ application. On that basis, the plaintiffs withdrew their application.
[5] In effect, Mr Wallace submits the plaintiffs’ withdrawal of their application was in those circumstances a responsible step. The categories of documents sought by the plaintiffs were relevant categories not included in the defendants’ discovery. The plaintiffs’ position is they had reasonable grounds to think those documents existed and it was only with the defendants’ affidavits that those categories were specifically addressed.
[6] As far as the defendants’ application for discovery goes, the plaintiffs note that the end result were affidavits confirming the categories of documents sought by the defendants did not exist. In my view, this means the defendants had the same degree
1 O’Neil v Beattie [2020] NZHC 2842.
of success or failure in respect of those categories as the plaintiffs did in respect of their application, which was withdrawn after it prompted clarifying affidavits from the defendants.
[7] To recap, of the five categories sought by the defendants, one category failed. In respect of three further categories, the affidavits provided by the plaintiffs confirmed no further documents existed to be discovered, and I will deal with the fifth category below.
[8] Lest it be thought that the plaintiffs could have provided clarifying affidavits in relation to the three categories referred to in the preceding paragraph, without the need for an application, or have done so earlier, I note the three categories which were subject to the further affidavit were subject to considerable discussion and refinement at the hearing.
[9] Mr Wallace adopted a pragmatic approach to the refinement of the categories and in relation to one category concerning the disclosure of financial information, agreed to follow through on an offer made before the hearing to provide disclosure of bank statements.
[10] The fifth category concerned the availability of emails sent from a company which had been struck off the Companies Office Register, Jamon Construction Ltd (Jamon). The first plaintiff was the director of Jamon. I was satisfied that the first plaintiff’s explanation as to why the emails were not available required expansion. This, too, was a refinement of the category of documents sought by the defendants.
[11] In respect of the fifth category, there is a direct parallel with the plaintiffs’ application which was withdrawn after the defendants explained that certain categories of documents had not been disclosed because they did not exist.
[12] Mr O’Neil, in his affidavit filed as a result of my interim judgment, confirmed the reason why the emails could not be recovered. Again, this explanation as to recoverability was not what was sought by the application, but rather what I directed as a result of discussions with counsel.
Decision
[13] It was through discussions with counsel during the hearing that the defendants’ applications became considerably refined. The true nature of the defendants’ concern was a dissatisfaction with the adequacy of the explanation as to why certain documents were not available. Mr Wallace, as recorded in the interim judgment, adopted a pragmatic approach to resolving those issues. In a perfect world, counsel would have reached the same result through direct discussions without the need for a hearing. That is not a criticism of busy counsel, but perhaps goes some way to explaining why I am satisfied that costs should lie where they fall.
[14] Ultimately, in respect of their respective discovery applications both parties achieved a similar outcome – affidavits confirming no further documents were available. Granted, the defendants’ application required a hearing, but that hearing was necessary to refine the categories of documents sought and to focus the defendants’ concerns in the manner recorded in the interim judgment.
[15]Accordingly, costs in respect of the interim judgment will lie where they fall.
Associate Judge Lester
Solicitors:
Godfreys Law, Christchurch Landley Law, Christchurch
Copy to counsel:
M J Wallace, Barrister, Christchurch P J Shamy, Barrister, Christchurch