Pioneer Landscape Centers, Inc v Bond
[2025] NZHC 2742
•19 September 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2025-404-2502
[2025] NZHC 2742
IN THE MATTER OF an application under Section 184 of the Evidence Act 2006 BETWEEN
PIONEER LANDSCAPE CENTERS, INC
First Applicant
SITEONE LANDSCAPE SUPPLY LLC
Second ApplicantAND
NATHAN BOND
Respondent
Hearing: 16 September 2025 Appearances:
S C D A Gollin and A E Simkiss for Applicants T J A Lindsay for Respondent via VMR
R S Brinkworth for Holcim-WCR Inc and Holcim-SWR Inc (Interested Parties) via VMR
Judgment:
19 September 2025
JUDGMENT OF O’GORMAN J
[Originating application on notice for orders under s 185 of the Evidence Act 2006]
This judgment was delivered by me on 19 September 2025 at 2 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
…………………………………
Solicitors:
MinterEllisonRuddWatts, Auckland Lindsay Francis & Mangan, Auckland Pitt & Moore, Nelson
PIONEER LANDSCAPE CENTERS, INC v BOND [2025] NZHC 2742 [19 September 2025]
Introduction
[1] In this proceeding, Pioneer Landscape Centers, Inc (Pioneer) and SiteOne Landscape Supply LLC (together, the applicants) sought orders under ss 184 and 185 of the Evidence Act 2006 (Act) to assist an overseas court by taking evidence in New Zealand from the respondent, Mr Nathan Bond (Mr Bond), a New Zealand resident. The evidence is sought for a trial commencing on 22 September 2025 in the District Court of the City and County of Denver, Colorado in Case No. 2023CV33710, Div. 280 (Colorado proceedings).
[2] The applicants are the defendants in the Colorado proceedings. The plaintiffs in the Colorado proceedings are Holcim-WCR Inc. and Holcim-SWR Inc. (together, the Holcim companies).
[3] As Duty Judge, on Thursday, 11 September 2025 I granted leave for the application to be commenced under pt 19 of the High Court Rules 2016, and allocated an urgent hearing for 9 am on Tuesday, 16 September 2025 to determine whether or not the application should be granted (noting that urgency does not make it easy for this Court to accommodate the requested hearing time or resources). Given the tight timing, I abridged the time for opposition documents to be filed, requiring those by 3 pm on Monday, 15 September 2025. I also indicated that, if the application were granted, then the examination would proceed at 10 am on Thursday, 18 September 2025 before a registrar.
[4] In accordance with my timetable, opposition documents were filed on behalf of Mr Bond, and by the Holcim companies as interested parties.
[5] After hearing from all counsel at the hearing scheduled for 16 September 2025, I declined to make the orders, with reasons to follow. These are my reasons.
Facts and procedural background
[6] Mr Bond was previously employed by investment bank BNP Paribas (BNP), in its New York Office. During 2022–2023 he was a member of the BNP team advising companies in the applicants’ group in relation to the negotiation of two
agreements that are the subject of the Colorado proceedings. BNP is not a party to those Colorado proceedings.
[7] Under the terms of a stock purchase agreement dated 14 November 2022, JLL Pioneer LLC, the prior parent entity of Pioneer, sold its rock quarry business to Holcim Participations (US) Inc (Holcim US), an affiliate of the Holcim companies. A material term of the stock purchase agreement was that Pioneer would enter into a supply agreement under which it was required to purchase certain minimum amounts of landscaping materials each year. That supply agreement was entered into on 20 January 2023 for an initial term of five years, with provision for automatic one-year extensions subject to either party giving notice to prevent such rollover. The supply agreement has terms governing forecasts and purchasing requirements, including provisions restricting any material changes to estimated order quantities in any subsequent quarter.
[8] Holcim US ultimately assigned its interests in the supply agreement to the Holcim companies.
[9] The Holcim companies say that the applicants did not meet their purchase obligations under the supply agreement. They commenced the Colorado proceedings in 2023.
[10] Mr Bond left New York in early 2024 and returned with his family to live and work in New Zealand. He is now a senior professional in the New Zealand banking industry, working for a different employer.
[11] On 25 March 2024, the applicants disclosed in the Colorado proceedings that Mr Bond was a potential witness with relevant knowledge. Despite this, none of the parties contacted or sought to depose Mr Bond.
[12] Discovery in the Colorado proceedings (including witness depositions) closed on 4 April 2025.
[13] It was not until 22 July 2025 that the applicants first emailed the respondent as a potential witness. This was followed by a telephone discussion between Mr Bond and Mr Stern on 25 July 2025. While Mr Bond indicated he was open to the possibility of testifying remotely, Mr Bond said he first needed to talk to his former employer, BNP, before committing.
[14] On 8 August 2025 Mr Bond advised the applicants that he was having difficulties getting BNP engaged and that his current employer in New Zealand would need to get involved too, “so unfortunately looks like I wont [sic] be able to testify”.
[15] On 15 August 2025, the applicants applied to the Denver District Court seeking a letter of request to be presented to the High Court of New Zealand, requesting deposition evidence of Mr Bond. The Holcim companies opposed the motion and filed a response on 27 August 2025. The opposed motion was granted on 5 September 2025, with the Denver District Court issuing its letter of request shortly afterwards.
[16] This New Zealand proceeding was commenced on 8 September 2025. On 9 September 2025, Peters J placed on the matter on the Duty Judge list for 11 September 2025.
Legal principles
[17] Sections 184 to 186 of the Act provide for this Court to grant assistance to obtain evidence for civil proceedings in another overseas court:
(a)This Court may order any provision for the taking of evidence in New Zealand if it considers that appropriate to give effect to a request by a requesting overseas court (s 185(1)).
(b)An order may include provision for the examination of witnesses, either orally or in writing at any agreed time or at any specified time and place (s 185(2)(a)).
[18] The form of the request must be in “substantial compliance” with the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (the Convention),1 which requires the request to specify:2
(a)the authority requesting its execution and the authority requested to execute it;
(b)the names and addresses of the parties to the proceedings and their representatives;
(c)the nature of the proceedings to which the evidence relates;
(d)the evidence to be obtained or other judicial act to be performed;
(e)the name and addresses of persons to be examined;
(f)the questions to be put to the persons to be examined or a statement of the subject matter about which they are to be examined;
(g)the documents or other property to be inspected; and
(h)any requirement that the evidence be given on affirmation and any special form to be used.
[19] In Labrador Entertainment, Inc v Moore, the Court’s approach for an application under ss 184 and 185 was summarised as follows:3
[19] The Court has a discretion over whether to grant the orders sought. The Court should ask: first, whether the intended witness can reasonably be expected to give evidence on the topics mentioned and second, whether the request legitimately seeks evidence for use at trial or impermissibly seeks to engage in investigation. The Court should not overstep the requesting court’s assessment of relevance or admissibility.
1 Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (signed 18 March 1970, entered into force 7 October 1972).
2 Labrador Entertainment, Inc v Moore [2022] NZHC 2674 at [15], citing Certain Underwriters at Lloyd’s London v Boles [2015] NZHC 1361 at [5]–[6].
3 Labrador Entertainment, Inc v Moore, above n 2, at [19]–[20].
[20] It is also necessary for the Court to recognise the principle of comity and accede to the request if it can properly be done. However, the Court should also keep in mind the need to protect intended witnesses from an oppressive request. There is a balance to be struck in each case between the legitimate requirements of the foreign Court and the burden those requirements may place on the intended witness.
Intended subject matter of Mr Bond’s examination
[20] The letter of request identifies the subject matter of the topics on which Mr Bond is to be examined as:
(a)the negotiation of the supply agreement;
(b)the connection between the supply agreement and the stock purchase agreement; and
(c)the due diligence process relating to the supply agreement and the stock purchase agreement.
[21] In Mr Simon’s affidavit dated 7 September 2025 filed in support of the application, he states that Mr Bond is likely to give evidence about:
(a)Mr Bond’s understanding at the relevant time of the percentage of projected Pioneer volumes that Holcim US believed were guaranteed by the supply agreement;
(b)the meaning of certain provisions of the supply agreement addressing pricing advantages that Holcim US was obligated to provide to Pioneer, and the basis for Mr Bond’s understanding;
(c)whether, during the period of his involvement, JLL Pioneer LLC or BNP disclosed to Holcim US any price increases at the subject quarries made during the year prior to execution of the stock purchase agreement, and the basis for Mr Bond’s understanding; and
(d)Mr Bond’s knowledge of which quarries Holcim US was primarily interested in purchasing, and the basis for his understanding.
Submissions in opposition
[22]The respondent opposes the applications on the following grounds:
(a)In relation to the application for priority, the requirements for urgency and a priority fixture are not established.4 The applicants did not contact Mr Bond until 22 July 2025 and the urgency of these matters is of their own making. There are no exceptional circumstances. Lack of preparedness of the matter for trial is not a qualifying ground. The respondent has already been forced on short notice to instruct counsel in his personal capacity to respond on an urgent basis with a severely truncated timetable outside the usual procedural timeframes for proceedings brought under pt 19 of the High Court Rules.
(b)As to the s 185 application, it is opposed on the grounds that:
(i)The respondent cannot attend to give evidence on Thursday, 18 September 2025 due to pre-existing business travel commitments for important meetings in Wellington (the details of which were explained in his affidavit with supporting evidence).
(ii)The s 185 application and the letter of request do not in substance comply with the Convention, because the letter of request appears to differ from the topics on which the applicants intend to question the respondent.
(iii)In any event, pursuant to s 186(1)(a) of the Act, the respondent has a privilege against giving the evidence sought, because such evidence could not be compelled in civil proceedings in New Zealand as it would be inadmissible pursuant to ss 7 and 8 of the Act.
4 See Gavin v Powell [2020] NZHC 1224 at [25] for a summary of relevant principles in considering applications for a priority fixture.
(iv)The proposed form of orders (deposition before a registrar and under urgency) is not appropriate in the circumstances of this case because such orders would unreasonably curtail or prejudice the respondent’s usual procedural and substantive rights before this Court. In particular, Mr Bond should have a right to have a Judge rule on any issues concerning the admissibility of his proposed evidence and s 186(1)(a) of the Act, and he should be able to pursue an appeal right in relation to such a ruling.
(v)The Court’s power under s 185(1) of the Act is discretionary. In all the circumstances the Court should decline to exercise that discretion, balancing the conduct of the applicants and lack of relevance or materiality of the respondent’s proposed evidence on the one hand, against the inconvenience to the respondent and the Court and the curtailing of the Court’s usual procedures and the respondent’s usual rights on the other.
[23] The Holcim companies as interested parties also object to the application and say that the applicants are seeking to undertake a last minute investigative exercise that is highly prejudicial to them, as an unfair and unnecessary distraction from the legal team’s preparation for commencement of the trial on Monday, 22 September 2025. The issues identified in Mr Simon’s affidavit go beyond what could be classified as being evidence sought for legitimate use at trial because:
(a)It is unreasonable to expect Mr Bond to give evidence as to what “Holcim US believed”, given that he did not work for Holcim US.
(b)Asking Mr Bond to express an opinion on the meaning of certain provisions is beyond the scope of the subject matter identified in the letter of request, and would be inadmissible both under New Zealand law and the law applicable to the Colorado proceedings.
(c)The question of whether the first applicant or BNP disclosed any price increases is not in dispute in the Colorado proceedings, and therefore any evidence the respondent may have on this topic will not advance the matter and is irrelevant.
Submissions in reply by applicants
[24] The applicants say the Denver District Court has already determined that the evidence is likely to be relevant, as recorded in the letter of request:
… in the view of this Court [Mr Bond’s evidence] will be relevant to the claims and defenses in the case…
…
The requesting Court is satisfied that the evidence sought to be obtained through this request is relevant and necessary and cannot be obtained through other methods.
[25] The High Court should not second guess or “overstep” the determination of the requesting court as to relevance or admissibility or alternative sources of the evidence,5 because the question of what evidence is relevant to an issue in the foreign action is “primarily a matter for the foreign court”.6 Under the terms of the letter of request, objections as to admissibility may be raised and recorded in the transcript, to be addressed by the Denver District Court.
[26] While rescheduling his Wellington meetings might cause considerable inconvenience for Mr Bond, this does not amount to oppression. Mr Bond has known for one month that a letter of request process was being pursued.
[27] Any confidentiality concerns can be addressed by invoking the protective order in the Colorado proceedings that governs the use and disclosure of information turned over in discovery during deposition testimony that a party designates as “confidential”. That designation maintains the confidentiality of the information by limiting who has access to the deposition transcript. The evidence from Mr Bond under examination
5 Labrador Entertainment, Inc v Moore, above n 2, at [19].
6 Republic of Kazakhstan v Mega Ltd [2016] NZHC 963, [2016] NZAR 810 at [43], citing First American Corporation v Zayed [1999] 1 WLR 1154 (EWCA) at 1165, which in turn followed In re Asbestos Insurance Coverage Cases [1985] 1 WLR 331 (HL) at 339.
can be taken subject to the protective order, which would address any confidentiality concerns raised by the Holcim companies.
[28] The applicants say that prejudice to the Holcim companies in terms of timing proximate to trial is irrelevant because oppression must relate to the intended witness.7
Privilege of witnesses in New Zealand
[29] Witnesses in New Zealand have a privilege against giving evidence that could not be compelled in civil proceedings in New Zealand. Section 186(1) of the Act provides:
186 Privileges of witnesses
(1)A person may not be compelled by an order under section 185(1) to give any evidence that the person could not be compelled to give—
(a)in civil proceedings in New Zealand; or
(b)in civil proceedings in the country or territory in which the requesting court exercises jurisdiction.
[30] The leading authority on s 186(1) is Hagaman v Fairbank, in which the Court of Appeal noted:8
As Panckhurst J said, comity is important here. But it is still necessary to be satisfied the New Zealand statutory tests for admissibility of evidence are met. Section 7 of the Evidence Act, dealing with the need for evidence to be relevant, comes into that equation.
[31] For the purposes of s 186(1)(a) of the Act and New Zealand law, counsel for Mr Bond submits:
(a)The respondent cannot give evidence (or relevant evidence) as to what Holcim US believed or what quarries the Holcim companies was primarily interested in. The respondent could not be compelled to give this evidence in a civil proceeding in New Zealand as it is both hearsay (precluded by s 17 of the Act) and irrelevant (precluded by s 7 of the Act).
7 Labrador Entertainment, Inc v Moore, above n 2, at [20].
8 Hagaman v Fairbank [2010] NZCA 526, (2010) 20 PRNZ 68 at [47] (footnote omitted).
(b)The respondent cannot give relevant evidence as to his subjective views on the meaning of the supply agreement (less still one he or his employer are not party to). Such views would be inadmissible under s 7 of the Act and the respondent could not be compelled to give this evidence in a civil proceeding in New Zealand.9
(c)Whether there were price increases at subject quarries does not appear to be a relevant issue in the Colorado proceedings. The respondent could not be compelled to give irrelevant evidence in a civil proceeding in New Zealand pursuant to s 7 of the Act. If the respondent could potentially give admissible evidence on this issue (which is not admitted), then it would only be low order evidence. Any probative value is outweighed by the fact that it would needlessly prolong the New Zealand deposition proceeding and should be excluded under s 8 of the Act.
[32] In respect of the respondent’s rights and usual safeguards, counsel for Mr Bond submits:
(a)Ordinarily, a deposition from a witness based in New Zealand for the purposes of US proceedings would be taken far in advance of the trial in the US proceedings commencing (depositions being part of the discovery process in US litigation).
(b)A registrar of the High Court does not have the power to determine issues of admissibility under New Zealand law or compliance with s 186(1)(a) of the Act more generally, and in any event there would be insufficient time to appeal any such ruling.
(c)As a result, the proposed form of orders (deposition before a registrar before 22 September 2025) curtails the respondent’s usual procedural and substantive rights.
9 Bathurst Resources Ltd v L&M Coal Holdings Ltd [2021] NZSC 85, [2021] 1 NZLR 696 at [56]−[57], [62]–[65] and [232]; and Vector Gas Ltd v Bay of Plenty Energy Ltd [2010] NZSC 5, [2010] 2 NZLR 444 at [13]–[14], [23], [27]–[29] and [151].
[33] In contrast, counsel for the applicants submits that s 186(1)(a) is concerned with compellability, not admissibility, relying on the following passage in Mahoney on Evidence:10
Questions of non-compellability under s 186(1)(a) will be settled by reference to other provisions of the Act. Successful claims are likely to be rare since, as a general matter, s 71 makes most persons eligible and compellable witnesses in New Zealand civil and criminal proceedings. However, where relevant, s 186(1)(a) will encompass non-compellability based on three potential grounds.
[34]That text goes on to consider:
(a)the status of witnesses, referring to the discussion under ss 72–76;
(b)privilege, referring to the discussion under ss 51–67; and
(c)confidentiality, referring to the discussion under ss 68–70.
[35] On the other hand, the authors of The Conflict of Laws in New Zealand acknowledge the Court of Appeal’s comment in Hagaman v Fairbank (quoted at [30] above), but suggest that it must be understood to mean that the court is satisfied that the New Zealand statutory tests for admissibility could (rather than must) be met, so that potentially relevant evidence is not excluded peremptorily.11
Analysis
[36] I accorded urgency for the hearing of this opposed application because of the importance this Court places on the principal of comity and acceding to a letter of request if this can be properly done. Such scheduling is extremely difficult to accommodate without reasonable prior notice, particularly during this week with the Court’s resources already fully committed.
10 Scott Optican and Elisabeth McDonald (eds) Mahoney on Evidence: Act and Analysis (2nd ed, Thomson Reuters, Wellington, 2024) at [EV186.03] (footnotes omitted).
11 Maria Hook and Jack Wass The Conflict of Laws in New Zealand (LexisNexis, Wellington, 2020) at [3.120] and n 159.
[37] In making the timetable orders, I was conscious of the significant timing pressure placed on Mr Bond, requiring opposition documents to be prepared over the weekend rather than giving him the normal time. There was no effective alternative solution because the applicants maintained that this Court must conduct the examination (including preparation of a transcript of evidence) for transmitting that to the Denver District Court prior to commencement of trial on 22 September 2025. I recorded that if the orders were granted, then examination would have to take place before a registrar on Thursday, 18 September 2025 at 10 am (there was no capacity for Judge time this week).
[38] The opposition documents now substantiate that this situation of urgency has arisen from the applicants’ own decision not to contact Mr Bond until 22 July 2025. That is entirely different from my understanding at the first call, when I was advised that his status as a witness was notified to the other parties in 2024 when he had agreed to give evidence remotely on a voluntary basis, but he unexpectedly “changed his mind” on 8 August 2025. Having now read the evidence of Mr Bond, I accept that he did not at any stage commit to giving evidence voluntarily. Furthermore, I understand the proper procedure in the Colorado proceedings would have been for his witness deposition to be conducted and disclosed by 4 April 2025, yet he was not even contacted until 22 July 2025. Had I known these facts, I would not have afforded urgency for the hearing on 16 September 2025. Both this Court and any respondent needs more notice than was given in this case. Lack of preparedness for trial is not a qualifying ground for urgency.
[39] Those concerns remain cogent now, when assessing whether the circumstances justify the priority allocation of Court resources to conduct an examination this week, particularly when there are disputed issues about the proper scope of the examination and questions of admissibility/compellability.
[40] In addition, I am cognisant of the unavailability of Mr Bond for an examination on 18 September 2025, being the date and time when this Court can provide the resources for an examination before a registrar. I accept Mr Bond’s evidence that he has pre-existing commitments made six to eight weeks earlier to take place in Wellington that day. Given the nature of those meetings (as described in his affidavit),
I consider it would be oppressive to expect Mr Bond to renege on those commitments (impacting not only him, but also his employer and third parties) solely because of so-called urgency of the applicants’ own making. The inability to work around Mr Bond’s existing commitments only arises because of the extremely late filing of this application, leaving no leeway to schedule the examination for a more suitable time in the coming weeks.
[41] In terms of the discretion, I also considered the relevance and importance of the proposed evidence from Mr Bond. I acknowledge the principles referred to in [25] above that questions of relevance are primarily a matter for the foreign court. However, objections are raised as to compellability in terms of ss 7 and 186(1)(a) of the Act in the sense referred to by the Court of Appeal in Hagaman v Fairbank, and that the broad topics listed in the letter of request are different from the intended questions referred to in Mr Simon’s affidavit. As those details were not in the letter of request, it is not clear that the Denver District Court did make any findings of admissibility to which this Court should defer.
[42] In any event, assessing those questions as a matter of New Zealand law for the purposes of s 186(1)(a), it is difficult to see any basis on which an external investment banker could give relevant matrix evidence probative on questions of objective interpretation or damages. Purely subjective perspectives about the interpretation of written contractual provisions are inadmissible as a matter of New Zealand law, and I do not see how an external investment banker in Pioneer’s wider transaction team can give probative evidence about what the Holcim companies believed or intended, even if those views could be relevant as a matter of Colorado law. My scepticism on these issues is heightened by the fact that the applicants did not even approach Mr Bond to explore those questions during the depositions and discovery process for the Colorado proceedings.
[43]The following evidence from Mr Bond in opposition is significant:
From the materials I have seen, however, it is not apparent to me how I can materially assist in relation to the Colorado proceedings, particularly under significant time pressures for all involved.
…
I was involved in the parties’ discussions that led to the entry into the Supply Agreement between Pioneer and Holcim, as part of the wider transaction team for Pioneer.
However, I was not a “lead negotiator” or even a main negotiator of the Supply Agreement. My understanding is that the Supply Agreement was primarily negotiated at a ‘principal to principal’ level between representatives of the two businesses, being [redacted] for Pioneer, and on the Holcim side I believe it was primarily [redacted]. The discussions I did have with Holcim in relation to Supply Agreement related topics were as a conduit for Pioneer, BNP’s client. I would mainly liaise with [redacted] of Holcim.
More specifically, I have been advised that the term of the Supply Agreement that are in dispute in the Colorado proceedings is primarily Section [redacted]. I do not recall being involved in negotiation of the contractual terms of those provisions with Holcim.
[44] I recognise that I am placed in a difficult position to assess these matters under urgency and with limited information. I also acknowledge that potentially relevant evidence should not be excluded peremptorily. However, I give these concerns weight in exercising my discretion. In other words, it is not clear to me how any of the intended questions of Mr Bond could ultimately be relevant or material (whatever he might say in response), which makes it particularly oppressive to impose a compulsory examination on him at short notice without the time or means to address admissibility/compellability concerns properly, when that would also significantly stretch the resources of this Court contrary to the interests of other court users with higher competing demands.
[45]For all of these reasons, I declined to grant the application.
[46] The respondent and interested parties are entitled to costs. If costs cannot be agreed, then memoranda may be filed by them within 10 working days, and the applicants may file a memorandum within a further 10 working days, for costs to be determined on the papers.
O’Gorman J
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