Penley Limited v Attorney General - [2020] NZHC 2927

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2017-409-000431

[2020] NZHC 2927

BETWEEN
PENLEY LIMITED

Plaintiff

AND

ATTORNEY GENERAL

First Defendant

AND

ELIOT SINCLAIR & PARTNERS

Second Defendant

Hearing: Determined on the papers

Counsel

C A McVeigh QC for Plaintiff

A N Isac QC and K M Anderson for First Defendant J P Forsey for Second Defendant

Judgment:

6 November 2020

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 6 November 2020 at 12.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

PENLEY LTD v ATTORNEY GENERAL [2020] NZHC 2927 [6 November 2020]

Introduction

[1]On 2 October 2020, I issued a judgment on applications by the first defendant:1

(a)for leave to join a third party; and

(b)that the plaintiff (Penley) provide further discovery.

[2]The relevant facts are set out in that judgment.

[3] This further judgment concerns only documents in categories 3 and 4 of the first defendant’s application for further discovery. In respect of those categories the application was adjourned for further submissions, which I have received.

Category 3 – resource consents

Background

[4]The category 3 documents are described as:

Any earthworks or stormwater resource consents for the development which contain conditions relating to monitoring and inspections of the earthworks, as well as any sediment control plan, and all notes or records relating to site inspections required under any resource or building consents.

[5] Penley filed a second supplementary affidavit of documents shortly before the hearing of the first defendant’s application. The additional documents discovered included a resource consent for earthworks. It was not clear if the further discovery satisfied the first defendant’s application.

First defendant’s submissions

[6] The first defendant is still not satisfied Penley has complied with its discovery obligations. Specifically, it argues that no resource consent has been disclosed relating to extensive earthworks undertaken prior to the discovery of asbestos containing material.

1 Penley Ltd v Attorney-General [2020] NZHC 2601.

[7] The first defendant relies upon the affidavit of Paul Walker, a technical director with Tonkin and Taylor, who says:

In my experience, a substantial earthworks project as part of a subdivision would normally require a land use and earthworks consent, which would provide information on the manner in which the earthworks would be undertaken, and the conditions to be adhered to in carrying out that work. Conditions of consent also generally contain conditions about site monitoring for, amongst other things, the discovery of hazardous materials.

[8] However, the first defendant acknowledges the second defendant, by its counsel, has agreed to undertake further searches to identify any relevant resource consents and that there is at least the possibility the recently joined third party (Texco) has documents in this category in its control.

[9]The first defendant submits the practical way forward is:

(a)Penley be required to file an affidavit outlining the relevant steps taken to complete a reasonable search for category 3 documents, and confirming the only documents…

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.

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Details

Case: [2020] NZHC 2927
Decision Date: 6 November 2020

CaseChat Overview and Summary

Penley Limited, the plaintiff, filed a lawsuit against the Attorney General, the first defendant, and Eliot Sinclair & Partners, the second defendant, in the High Court of New Zealand. The dispute involved an application for leave to join a third party and a request for further discovery. The primary focus of the case was on the discovery of certain categories of documents, specifically earthworks and stormwater resource consents, as well as documents relevant to establishing the quantum of damages sought.

The legal issues the court needed to decide were whether Penley had adequately fulfilled its discovery obligations concerning the category 3 and category 4 documents. The first defendant argued that Penley had not disclosed all relevant documents, particularly those related to resource consents for extensive earthworks undertaken prior to the discovery of asbestos-containing material. The court had to consider the sufficiency of Penley's affidavits and whether further searches were necessary.

In its judgment, the court concluded that Penley had substantially complied with its discovery obligations regarding the category 3 documents. The court found that Penley had conducted a reasonable search and disclosed the relevant documents, including a resource consent for earthworks. The court was not convinced there were further documents in Penley's control, especially given that the second defendant had indicated it was likely to have the missing documents. The court dismissed the application in respect of the category 3 documents.

Regarding the category 4 documents, the court found that Penley had substantially complied with its discovery obligations but had not located a few invoices and related documents. The court considered it appropriate to adjourn the application and allow the first defendant to liaise with the second defendant to obtain the missing documents. The court did not order Penley to file an amended statement of claim or provide further particulars of its claim, as that was not the subject of the application.

The final orders of the court were to dismiss the application in respect of the category 3 documents and to adjourn the application in respect of the category 4 documents pending the second defendant's cooperation. The court reserved costs pending resolution of the matters and directed counsel to confer and attempt to reach agreement on costs. If agreement could not be reached, the court would receive memoranda within the specified timeframe.

Orders