Pfisterer v Claims Resolution Service Limited

[2019] NZHC 1179

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-000649

[2019] NZHC 1179

BETWEEN

LUCIA RENATE PFISTERER

Defendant/Counterclaim Plaintiff

AND

CLAIMS RESOLUTION SERVICE LIMITED

Plaintiff/First Counterclaim Defendant

AND

GRANT SHAND BARRISTERS AND SOLICITORS

Second Counterclaim Defendant

Hearing:

29 April 2019

Appearances:

M S Smith for Defendant/Counterclaim Plaintiff

A R B Barker QC for Plaintiff/First Counterclaim Defendant A B Darroch for Second Counterclaim Defendant

Judgment:

28 May 2019

JUDGMENT OF OSBORNE J

(on interlocutory applications)

Introduction

[1]    Lucia Pfisterer had a property which was affected by the Canterbury Earthquake Sequence.

[2]    She entered into a contract with Claims Resolution Service Ltd (CRS) for assistance in relation to that claim. When proceedings came to be issued in Mrs Pfisterer’s name, the firm of Grant Shand Barristers and Solicitors (Grant Shand) was retained to represent her.

PFISTERER v CLAIMS RESOLUTION SERVICE LIMITED [2019] NZHC 1179 [28 May 2019]

[3]    A point was reached in the litigation where Grant Shand purported to commit Mrs Pfisterer to a settlement with her insurer. Mrs Pfisterer then denied that Grant Shand was authorised to enter into such an agreement on her behalf. Mrs Pfisterer’s relationship with both CRS and Grant Shand came to an end.

[4]    By this proceeding, CRS sought recovery of sums it claims it is entitled to under the contract it entered into with Mrs Pfisterer. Mrs Pfisterer denies liability  and has counterclaimed against both CRS and Grant Shand asserting misrepresentation, breach of the Fair Trading Act 1986 and breach of fiduciary duty.

The interlocutory applications

[5]In this judgment, I determine a number of opposed interlocutory applications.

[6]    Mrs Pfisterer seeks further discovery from CRS and also an order that CRS answer identified interrogatories.

[7]    By cross-application, Grant Shand seeks discovery orders against Mrs Pfisterer.

The conduct of the hearing

[8]    To enable the parties to make prompt progress on matters to be ruled on, I dealt separately at the hearing with each subject-matter of the applications and gave such rulings as were possible in the course of the hearing itself. Those are reflected in the judgment which follows. In two areas, the Court’s judgment was reserved and those are also contained in this judgment.

Ruling 1

[9]    This is the first of a series of rulings on interlocutory applications I am hearing. In the course of his submissions, Mr Smith, for Mrs Pfisterer, has sought leave to have certain aspects of her discovery application adjourned to be brought on later for hearing if necessary. That is done in the light of the very recent receipt by Mr Smith’s instructing solicitors of a bundle of 329 additional documents.

[10]    I am satisfied that Mrs Pfisterer should have the opportunity for her solicitors to review those documents before deciding to what extent, if any, it is necessary to pursue further discovery.

[11]There will accordingly be an order in terms of Mr Smith’s road map,

paragraph 3, save that I delete the words sine die.

Ruling 2

[12]   I refer to the order Mr Smith seeks at paragraph 2 of his road map document. I order that the timesheets recently provided to the other parties by Grant Shand (being in this judgment, a reference to the firm, Mr Shand himself being referred to herein as “Mr Shand”) be the subject of a brief supplementary affidavit of discovery in which Mr Shand deposes as to the producer of the timesheet and the date on  which the version provided to other parties was produced.

[13]   I am satisfied that Mrs Pfisterer should have the opportunity for her solicitors to review those documents before deciding to what extent, if any, it is necessary to pursue further discovery.

Ruling 3

[14]   This is the third of a series of rulings in relation to Mrs Pfisterer’s discovery application. As now stated, the application is for the first and second counter-claim defendants to file an additional affidavit giving discovery of documents evidencing the job description and/or role of Leon Hendren as general manager of the Staples Group Limited and the power or authority of Mr Hendren or any other person who held the position of general manager of the Staples Group Limited/Staples Can Limited (as the Staples Group Limited was previously named) to make decisions for and/or to oversee or direct payments of money held or controlled by Earthquake Services Ltd (ESL).

[15]   I will, if called upon by counsel, be providing a more detailed explanation of the pleadings and the relevant issues in this case to follow this hearing and as a supplement to this ruling I also reserve to myself at the conclusion of the rulings I

will give in this hearing to review any particular ruling if for any reason it needs review in the light of subsequent submissions or rulings. Otherwise this ruling will stand.

[16]   The essential questions upon which Mr Smith bases this and most of the specific applications which follow arise from Mrs Pfisterer’s pleaded claim against CRS and Grant Shand, that those entities owed Mrs Pfisterer a fiduciary duty which was subsequently breached. Mrs Pfisterer claims the right pursuant to that and other grounds of defence and causes of action to not pay CRS anything on account of commission or other charges, and seeks other remedies including general and special damages.

[17]   As part of the fiduciary breach cause of action, Mrs Pfisterer asserts that the counterclaim defendants were parties to a joint venture which involved seeking clients who had earthquake claims which CRS and Grant Shand would assist them with commissions and the on-charging of the costs of other entities such as experts were to be dealt with by arrangements generally entered into by CRS in the way the case is pleaded.

[18]   Turning to the specific request here made, Mr Hendren is variously described as general manager of the Staples Group Limited and as general manager of CRS.

[19]   The entity referred to as ESL in the application is Earthquake Services Limited, an entity which can broadly be described as, along with Staples Group Limited and a number of other entities bearing the Staples name, controlled by Mr Bryan Staples. The intent of the application, as Mr Smith explains it, is to elicit a document or documents which would indicate what degree of control and decision making Mr Hendren on behalf of the other Staples entities had over ESL which would be charging for its services in relation to matters such as the preparation of the detail that would go into a statement of claim. There is already a body of documentary evidence, not great in detail but a reasonable body, some of which Mr Smith took me to in the course of his submissions which indicates that Mr Hendren in his general manager role was arranging, including with Mr Shand, for payments to be made to deal with costs of associated entities such as ESL.

[20]   Mr Smith, for Mrs Pfisterer, seeks a document such as the job description or a contractual document of Mr Hendren as general manager on the basis that it may indicate more clearly what measure of control Mr Hendren exercised over such matters. In turn, this might assist Mrs Pfisterer to indicate the breadth of arrangements which, on her case, form part of an overall joint venture arrangement.

[21]   I am not satisfied in relation to this particular document that it is reasonably necessary for the advancing of Mrs Pfisterer’s claims. As Mr Barker QC submits there is a good body of evidence already which indicates the breadth of Mr Hendren’s role. Mr Barker has confirmed from the bar that Mr Hendren came into  his general manager role in 2016. I am not satisfied that anything in his job description or his role as general manager of the Staples Group Limited or CRS is necessary for Mrs Pfisterer’s advancing of her case in relation to the joint venture allegations.

[22]   I will not be making an order in relation to the class of documents identified as 1(a)(i) in the Appendix to Mr Smith’s road map document.

Ruling 4

[23]   This is a further ruling in CIV-2018-409-000649. The further two categories of documents sought are:

(ii)Documents evidencing any direct or indirect financial interest CRS and/or its principal, Bryan Staples, had in ESL or 8D Project Management Limited (8D).

(iii)Documents evidencing any direct or indirect and/or its principal, Bryan Staples, received in connection with the engagement of ESL or 8D by CRS and/or Grant Shand.

[24]   Mr Smith, for Mrs Pfisterer, relates these categories of documents to the fiduciary duty and fiduciary breach allegations. Mr Smith referred to a passage in  Mr Staples’ evidence sworn on behalf of CRS in which he states that as “founder, a director and a shareholder of CRS, ESL and 8D I earn an income from some or all of

these companies”. The two categories of identified documents would provide more detail around what Mr Staples has stated in his affidavit.

[25]   The further pleading relevant in Mr Smith’s submissions to these two categories of documents is that specifically in the context of the alleged fiduciary duties, CRS should have disclosed the nature of the financial interests which it had in the context of the remuneration that CRS would receive either directly or indirectly through other entities or from other entities.

[26]   Mr Barker, for CRS, emphasises that the nature of Mr Staples’ control of the various entities, both in terms of directorship and shareholding, clearly evidences the fact that sums to be received by ESL and/or 8D would financially benefit CRS and/or Mr Staples. In that regard the gist of the submission is that this is  unnecessary further information.

[27]   Mr Smith counters on the basis that the extent of financial benefit received by CRS from other entities which on the defendants’ case were held out to be providing independent reports, whether as to damage assessment or as to issues of costing, but those matters will inform the trial Judge’s view of the extent to which disclosure of interest was required on the part of CRS and will inform the decision on whether there has been a breach.

[28]   Mr Smith referred to the possibility that the level of receipt might be as disparate as, say, $10,000 on the one hand and $100,000 on the other hand. There is also no known breakdown of what portion of fees those actually employed within the related companies receiving the benefit of their work as against CRS and/or Mr Staples.

[29]   I am satisfied that, having regard to the uncertain nature of Mr Staples’ concession in his evidence, that he earns an income from, and I add emphasis, some or all of these companies, it is relevant for the defendant to have access to documents of the nature sought. I am not satisfied that it should be in as open-ended terms as sought in orders 2 and 3. That said I am satisfied, notwithstanding Mr Barker’s

submission to the contrary that it is appropriate to include the financial benefit that Mr Staples would receive as well as the financial benefit that CRS would receive.

[30]   It is for CRS to provide discovery, not for Mr Staples, but the interest of the one CRS cannot be divorced from the interest of the other, the principal shareholder and director, Mr Staples.

[31]   I order CRS to make additional discovery of documents evidencing any direct or indirect financial interest CRS and/or its principal Bryan Staples had in ESL or 8D, measured by reference to the period three months either side of Mrs Pfisterer’s entry into her contract with CRS, and documents evidencing any direct or indirect financial benefit CRS and/or its principal Bryan Staples received in connection with the engagement of ESL or 8D by CRS and/or by Shand solicitors in the period extending six months after the date on which Mrs Pfisterer entered into her contract with CRS. Neither of these orders applies to the second counter-claim defendant.

Ruling 5

[32]   This is a ruling on what Mr Smith in his road map has re-framed as item (iv) (having invited me not to further consider item (iv)). Item (v) reads:

v.           documents evidencing consideration of and/or communications in relation to adverse comments about plaintiff experts made in Minutes issued by Justice Wylie in 2014 (including Justice Wylie’s Minute of 13 August 2014 in respect of Mrs Pfisterer’s proceeding), including:

1.documents evidencing the creation of and communications on the Schedule dated 7 November 2014 that records a number of different proceedings (including Mrs Pfisterer’s) where Justice Wylie had issued High Court Minutes that included adverse comments about expert witnesses associated with CRS;

2.documents evidencing consideration of and/or communications in relation to whether, when and/or how the adverse comments that Justice Wylie made in any of those Minutes should be discussed with clients of CRS and/or Shand Solicitors in general and/or with Mrs Pfisterer in particular.

[33]   By this item, as reflected in its wording, Mrs Pfisterer pursues discovery of documents in the nature of communications or file notes which may have arisen in

the light of adverse comments made, particularly by Wylie J in his Honour’s administration of earthquake list cases in and around 2014. It is clear from records produced that his Honour had made adverse comments about the experts being used by plaintiffs retaining Grant Shand and utilising CRS’s services in more than a dozen cases.

[34]   The particular criticism of his Honour in relation to the experts used in Mrs Pfisterer’s litigation is contained in a Minute of his Honour dated 13 August 2014 in which Wylie J recorded that he had discussed his concerns with Miss Pfisterer (as she is recorded in the Minute) and his Honour set out his advice given to Mrs Pfisterer as to the risk that a Judge might place little weight on the information provided by the associated companies, ESL and 8D, or even rule their evidence entirely inadmissible.

[35]   Mr Smith submits that communications arising in the two counterclaim defendant organisations and discussions which may have taken place between them about the adverse comments received, are relevant to Mrs Pfisterer’s case, in particular his submission, is that at the very least Mrs Pfisterer in the proceedings that were issued in her name may have not used the two organisations if she had been fully informed as to the desirability of changing or not utilising the two organisations in question, and CRS and/or Grant Shand had taken on board Wylie J’s observations as I infer to actively dissuade Mrs Pfisterer from embarking on a case using those experts.

[36]   Mr Barker and Mr Darroch for the counterclaim defendants emphasise that the latter parts of analysis relating to what CRS and Grant Shand did will not be assisted by the discovery sought. The discovery addresses the earlier stage which is the stage at which the counterclaim defendants should have been on the plaintiff’s case assessing the need for full discussion with Mrs Pfisterer as to the risks involved and discussion as to what appropriate measures to take in response.

[37]   I am not persuaded either that the documents sought have sufficient materiality or that they would involve reasonably proportionate discovery. It is a matter of record, albeit with some information redacted, that there were numerous

cases in which other parties’ litigation had become the subject of Wylie J’s observations in minute form. Those matters Mrs Pfisterer does not need further evidence of. The parties can be cross-examined about them as Mr Barker and Mr Darroch submit.

[38]   I do not disregard Mr Smith’s  observation that had Mrs Pfisterer not had    her proceeding issued in reliance on the reports obtained from ESL and 8D, she may not have suffered a litigation disadvantage through proceeding with what in terms of Wylie J’s observations were reports of dubious value and I recognise that there may have been some arguable disadvantage to Mrs Pfisterer in that regard. That said, those are again matters that she is able through counsel to explore at trial, if there has been damage which has accrued. I do not consider it particularly informed by her having additional categories of documents in either subcategory 1 or subcategory 2.

[39]   The final clause of subcategory 2 addresses documents which would  evidence consideration and/or communications on the part of either counterclaim or between them as to how the minutes should be responded to in terms of Mrs Pfisterer’s case in particular. It goes without saying in declining the application for category (v) that the Court is taking it that both CRS and Grant Shand have made comprehensive discovery of everything relating to Mrs Pfisterer in their possession or previously in their possession, whether it is contained on a file named in relation to Mrs Pfisterer or otherwise.

[40]I decline this application.

Ruling 6

[41]   In addition to her applications for discovery, Mrs Pfisterer applied for an order, pursuant to r 8.38 High Court Rules, that both CRS and Grant Shand file and serve a statement (in accordance with r 8.39) in answer to two identified interrogatories. At the hearing, Mr Smith, in order to accommodate some criticism  of the breadth of the first proposed interrogatory, slightly amended the proposed interrogatories. The interrogatories now sought are:

(a)Did the undocumented arrangements between  Bryan  Staples  and  Mr Shand include that Grant Shand Solicitors or Mr Shand (personally) would share in any CRS costs or CRS commission monies that CRS would charge to/receive from clients who CRS and Shand Solicitors both acted for?

(b)If the answer to that question is “yes”, how was that share to be

calculated?

[42]   Mr Shand, in his notice of opposition, initially raised a jurisdictional issue upon the basis that an order should not be made under r 8.38 as Mrs Pfisterer had not first issued a notice under r 8.34.

[43]   At the hearing, Mr Darroch responsibly withdrew reliance on that ground of opposition.   There is nothing in the rules to prohibit the making of an order under     r 8.38 in the absence of a prior notice under r 8.34. In fact, it made sense in this case where discovery orders were having to be sought for related reasons to have the one interlocutory application deal with both discovery and interrogatories. That has proved to be the most convenient course.

[44]   For Mrs Pfisterer, in the present context, a central element of her counterclaim against both counterclaim defendants is that there existed between them and herself a fiduciary relationship which imposed on them a number of pleaded duties including in relation to the disclosure of conditional fee arrangements and conflicts of interest arising from a joint venture between the defendants. It is not an issue that there were arrangements between the counterclaim defendants as to client affairs. In his affidavit in opposition, Mr Staples expressly accepted that the formal commercial relationships between the parties to the proceeding are relevant. What the proposed interrogatories seek to establish focuses on whether, to the extent of arrangements between the two defendants were undocumented, they provided for Grant Shand to share in what would otherwise be viewed as CRS’s  entitlements (and, if so, to what extent?).

[45]   For Mr Staples, Mr Barker submitted that the proposed interrogatories are not relevant to the issues in the trial. I reject that submission. The pleadings plainly  bring into contention the information which the interrogatories seek.

[46]   Secondly, Mr Barker submitted that for a number of reasons the administration of the interrogatories would be oppressive. He made a number of points:

(a)There would be a “huge number of people” who would be affected.

(b)The interrogatories do not specify what time frame is to be covered (Mr Barker suggesting that the answer would presumably only have to cover the period until Mrs Pfisterer signed up).

(c)There were a range of costs structures made available by CRS, only one of which is that adopted by Mrs Pfisterer.

[47]   Mr Darroch, on behalf of Grant Shand, objected to the scope of the interrogatories, submitting that they should be limited to any undocumented arrangement which related to Mrs Pfisterer’s claim. Mr Darroch submitted that the interrogatory 1 would have been more appropriately drafted if it had referred to the existence of “any intention on the part of Grant Shand to share in costs” rather than any “undocumented arrangements”.

[48]   I indicated to counsel at the hearing that I was satisfied that the Court should exercise its discretion to order the answering of two interrogatories. The subject- matter of the interrogatories is relevant. The fact that Mr Smith has limited the interrogatories to two (closely related) in number is in itself a good indication that Mrs Pfisterer is not seeking to interrogate the counterclaim defendants on an oppressive basis. There is nevertheless some strength in Mr Barker’s proposition  that interrogatory 1, if ordered, needed to be limited in its time-frame. Finally, I do not find merit in Mr Darroch’s suggestion that a question as to “undocumented arrangements” would be more appropriately replaced with a question as to the

“intention” of one of the parties. What it is material for Mrs Pfisterer to know is whether there was in fact an arrangement between both counterclaim defendants.

[49]   In the circumstances, I order both counterclaim defendants to file and serve on the counterclaim plaintiff a statement prepared in accordance with r 8.39, and verified by affidavit, in answer to the following interrogatories:

(a)Did the counterclaim defendants enter into undocumented arrangements either in relation to the counterclaim plaintiff or any other client in the period up to six months before and up to six months after 28 February 2014, by which the counterclaim defendants would share in any CRS costs or CRS commission monies that CRS would charge to/receive from clients who CRS and Shand Solicitors both acted for?

(b)If the answer to question (a) is “yes”, what were the arrangements in relation to:

(i)Mrs Pfisterer; and

(ii)in relation to any other clients (identifying, if more than one, the several arrangements and the calculation in relation to each) with permission to the counterclaim defendant to identify each particular client by an anonymous description (such as “Client A”, “Client B”, etc. rather than by actual name)?

Ruling 7

[50]   This last ruling is in relation to a single cross-application. The cross- application, made by Grant Shand, was for particular discovery from Mrs Pfisterer. Mr Shand sought two categories of documents, namely:

(a)Correspondence,  file  notes  and  other   documents   concerning   Mrs Pfisterer’s claim against Southern Response held by the following lawyers:

(i)Alistair Bowers;

(ii)Tavendale & Partners and Malcolm Wallace; and

(iii)GCA Lawyers.

(b)Documents relating to the demolition  of  the  house  and  sale  of  Mrs Pfisterer’s property at 123 Fifield Terrace, Opawa, Christchurch.

The lawyers’ records

[51]   For Grant Shand, Mr Darroch submitted that the legal  advice  concerning Mrs Pfisterer’s insurance claim is relevant because Mrs Pfisterer claims the cost of each set of legal advice as items of special damages. Grant Shand’s defence raises issues as to causation and in particular intervening cause (arising from the involvement of three separate solicitors on the same issue) and the reasonableness of the fees individually and totally. Mr Darroch observed that it is part of  Grant Shand’s case that the settlement offered to Mrs Pfisterer in 2016 was not bettered by the settlement agreement she eventually signed, after the three subsequent law firms had been involved.

[52]   In relation to the privilege which  would  normally  attach  to  the  advice  Mrs Pfisterer received from her solicitors, Mr Darroch submits that the legal advice has been put in issue by Mrs Pfisterer in her counter-claim. Mr Darroch recognises that the legal professional privilege which applies to communications between a lawyer and their client  is  that  which  is  codified  in  s  54  Evidence  Act  2006.  Mr Darroch recognised that this Court, in Dixon v Kingsley, accepted that fee notes issued by a party’s solicitor in relation to relationship property litigation would likely fall within s 54 of the Evidence Act (as confidential communications made in the

course of and for the purpose of a legal advisor giving professional legal services to that party).1

[53]   For the lawyers’ communications, Mr Darroch primarily relied on the provisions of s 65 of the Evidence Act. Under s 65(3) privilege may be waived by putting a privileged communication in issue in a proceeding.   Alternatively, under    s 65(2) privilege will be waived where the client produces or discloses any significant part of the privileged material in a way which is inconsistent with a claim of confidentiality. Mr Darroch referred to Houghton v Saunders, as establishing, for implied waiver, a test of whether the claim of privilege, if upheld, could lead to injustice.2 As it was put by French J in Houghton v Saunders:3

… the test to be applied is whether in all the circumstances the conduct is inconsistent with maintaining confidentiality of the privilege material in a way that could lead to injustice if the privilege is upheld; Ophthalmological Society [of New Zealand Inc v Commerce Commission] at 154.⁴ This test although enunciated in a pre-Evidence Act decision, is still applicable to a consideration of both s 65(2) and s 65(3)(a); AstraZeneca [Ltd v Commerce Commission] at [31] – [39].⁵

(footnotes added)

[54]   For her part, Mrs Pfisterer asserts her privilege under s 54 of the Evidence Act. By her notice of opposition she asserted:

The privilege documents are not in any event relevant on the pleadings because the adequacy of any outcome that Grant Shand achieved for Mrs Pfisterer and/or the appropriateness of any advice Grand Shand gave to Mrs Pfisterer are questions of law for the Court to determine on the objective facts. Mrs Pfisterer asserts that any subjective use of the law firms subsequently acting for her on those questions of law are irrelevant to their determination as are any subjective views of lawyers at Grant Shand.

[55]Alternatively, Mrs Pfisterer has not express or impliedly waived privilege.

[56]In his submissions, Mr Smith noted that the relevant paragraphs of Mrs

Pfisterer’s pleadings do not directly put in issue the adequacy of Grant Shand’s legal

1      Dixon v Kingsley [2015] NZHC 2044, [2015] NZFLR 1012.

2      Houghton v Saunders (2009) 19 PRNZ 476 (HC).

3      Houghton v Saunders, above n 2, at [55](vii).

4      Ophthalmological Society of New Zealand Inc v Commerce Commission [2003] 3 NZLR 145 (CA).

5      AstraZeneca Ltd v Commerce Commission (2008) 12 TCLR 116 (HC).

advice as the claims against Grant Shand are for breaches of fiduciary duty, not negligence. While in its counterclaim defence, Grant Shand asserts that the 2016 offer received by Mrs Pfisterer “was very good”, whether that is so is not relevant to whether there was a breach of fiduciary duty as a fiduciary who breaches their duties forfeits the right to remuneration regardless of the fairness of any outcome achieved for the beneficiary.6

[57]   Mr Smith continued that whereas Grant Shand evidently intends to place emphasis upon the fact that the insurance settlement eventually obtained by Mrs Pfisterer was not better than that offered in 2016, the Court’s decision upon the basis of any comparison will be in relation to the objective factual context of each settlement, determined independently of the reasoning and any factual assumptions recorded in subsequent legal advice.

[58]   To the extent that Mr Darroch invoked Grant Shand’s intention to pursue issues of causation of damage, Mr Smith submits that the complexity of events which followed, including Southern Response’s consistently maintained position that Mrs Pfisterer’s claim had been settled through Grant Shand in April 2016, meant that any causation argument will not be assisted by causation arguments such as whether the work of the subsequent three law firms was duplicated or not caused by the initial events for any other reason.

[59]   I conclude, before issues of privilege come to be considered, that documents disclosing the advice provided by the subsequent three law firms lacks relevance for the reasons explored in Mr Smith’s submissions. The documents in question may well have had relevance if Mrs Pfisterer was pursuing a counterclaim based on negligent advice, in which context a comparison of the respective sets of advice would have been relevant. Here, where the claim is based on breach of fiduciary duty, the Court’s determination as to whether Mrs Pfisterer’s subsequent legal costs constitute damage which flowed from fiduciary breach will turn on an objective assessment of the steps taken in her response rather than on the nature of advice which may have informed her response.

6      Smith v Claims Resolution Service Ltd [2019] NZHC 127 at [28] – [29].

[60]   For reasons relating to the irrelevance of the privilege content of the documents sought, I decline the application in relation to those documents.

[61]   In these circumstances, it is unnecessary that I determine whether Mrs Pfisterer should be found to have (expressly or impliedly) waived privilege in relation to the documents. I recognise force in Mr Smith’s submissions (closely aligned to those he made in relation to relevance) that the privilege communications between the three law firms and Mrs Pfisterer had not been put in issue in the proceeding.

Documents relating to demolition and sale of the property

[62]   By its notice of opposition, Grant Shand asserted that documents relating to demolition and sale of the property should be discovered because Mrs Pfisterer had arranged for her house to be demolished and then sold.

[63]In his synopsis, Mr Darroch observed simply:

… the documents concerning the demolition of Mrs Pfisterer’s house and the subsequent sale of her property are relevant to the objective background of her claim. They are also relevant to the context of the advice provided to her by Grant Shand and her subsequent lawyers in relation to the offer(s) made by Southern Response.

[64]   In his oral submissions Mr Darroch noted that by her counterclaim Mrs Pfisterer had asserted that she owned the property and that it was “uninhabitable” and “demolished”. Mr Darroch informed me that as a matter of fact on the day after the counterclaim was filed, Mrs Pfisterer had settled the sale of the property.

[65]   Mrs Pfisterer opposed the application for discovery in relation to demolition and sale upon the basis that the information was irrelevant on the pleadings.

[66]   I am not satisfied that the documents sought are relevant to the issues in the case. The very fact that Mr Darroch’s brief observations in his synopsis described  the documents as “relevant to the objective background of the claim” points to the documents from being at least one remove from strict relevance. Any figures as to sale price and demolition cost will be readily identifiable as a matter of fact, if they

are considered to be of background assistance to Grant Shand. On the other hand, documents concerning those matters by way of discussion or further detail have no demonstrable relevance.

[67]I decline the application for those documents.

The costs of these applications

[68]   Counsel requested that I reserve the costs to enable the parties to resolve them by agreement if possible.

[69]   I accordingly reserve the costs and disbursements of both sets of applications. In the event they are not resolved by agreement they will be dealt with on the basis of memoranda to be filed (five page limit in each case). The submissions are to be filed and served by any applicant for costs within 10 working days from today and any respondent within five working days thereafter. If no application is so made by memorandum, the Court’s order will be (without further direction) that there is no order as to costs.

Osborne J

Solicitors:

GCA Lawyers, Christchurch

Counsel: M S Smith, Barrister, Wellington Canterbury Legal, Christchurch

Counsel: A R B Barker QC, Auckland Darroch Forrest Lawyers, Wellington