Premier Events Group Limited v Beattie no.4 HC Auckland CIV 2010-404-003178

[2011] NZHC 1059

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2010-404-003178

BETWEEN  PREMIER EVENTS GROUP LIMITED Plaintiff

ANDMALCOLM JAMES BEATTIE First Defendant

ANDANTHONY JOSEPH REGAN Second Defendant

ANDCT NZ LIMITED (PREVIOUSLY KNOWN AS CARTAN GLOBAL LIMITED)

Third Defendant

ANDPARNELL PARTNERS GROUP LIMITED Fourth Defendant

ANDSPORTS HOSPITALITY MANAGEMENT LIMITED Fifth Defendant

ANDPARNELL PARTNERS GROUP (NZ) LIMITED

Sixth Defendant

ANDCARTAN GLOBAL LLP Seventh Defendant

ANDCARTAN TOURS INC Eighth Defendant

ANDSPORTSMARK MANAGEMENT GROUP LIMITED

Ninth Defendant

CIV 2011-404-000474

AND BETWEEN            ANTHONY JOSEPH REGAN First Plaintiff

ANDANTHONY JOSEPH REGAN JENNIFER ANNE REGAN AS

PREMIER EVENTS GROUP LIMITED V MJ BEATTIE & ORS HC AK CIV 2010-404-003178 30 September

2011

TRUSTEES OF THE PICCADILLY TRUST

Second Plaintiffs

ANDROBERT GILL First Defendant

ANDPREMIER EVENTS GROUP LIMITED Second Defendant

ANDBA PARTNERS LIMITED (IN RECEIVERSHIP AND LIQUIDATION) Third Defendant

ANDDIGITAL PARTNERS LIMITED (IN RECEIVERSHIP AND LIQUIDATION) Fourth Defendant

ANDCPG YORK LIMITED Fifth Defendant

ANDBRAND ADVANTAGE MEASUREMENT AND CONSULTING LIMITED

Sixth Defendant

ANDDIGITAL PARTNERS (NZ) LIMITED Seventh Defendant

Hearing:         30 September 2011

Counsel:         M Pascariu for the Plaintiff in the First Proceeding

J Eichelbaum for the First to Seventh Defendants in the First
Proceeding
J Eichelbaum for the Plaintiffs in the Second Proceeding

M Pascariu for the First, Second, Fifth, Sixth and Seventh Defendants in the Second Proceeding

C Curran-Tietjens for the Receivers/Liquidators of the Third and
Fourth Defendants in the Second Proceeding

Judgment:      30 September 2011

ORAL JUDGMENT OF WYLIE J

The Interlocutory Applications

[1]      On  19 August  2011,  the  plaintiffs  in  proceedings  CIV 2011-404-000474 sought:

(a)      further and better discovery in those proceedings.   The intitulement also referred to proceedings CIV 2010-404-003178, but in the body of the document it was made clear that it was only the plaintiffs in proceedings  CIV  2011-404-000474  who  were  seeking  that  there should be further and better discovery;

(b)      non-party  discovery  from  New Zealand  Netball  Incorporated  and

Times House Digital Limited;

(c)      leave to continue the proceedings against two of the defendants who are in liquidation; and

(d)      an adjournment of the hearing date fixed for 7 February 2012.

[2]      An amended application also dated 19 August 2011, but filed in the Registry on  7 September  2011,  sought  further  and  better  discovery,  non-party  discovery against Times House Digital Limited, leave to continue the proceedings against the companies in liquidation, and an adjournment of the hearing date.   The document bore the intitulement of proceedings CIV 2011-404-000474, and also referred to proceedings CIV 2010-404-003178.  In the body of the document at page 3, an order was  sought  that  the  plaintiff  in  proceedings  CIV  2010-404-003178  should  be required to provide further and better discovery.

[3]      In a further amended application dated 13 September 2011 and filed on that day, the plaintiffs in proceedings CIV 2011-404-000474 sought an adjournment, leave to continue the proceedings against the companies in liquidation, non-party discovery  against  Times  House  Digital  Limited,  non-party  discovery  against New Zealand Netball Incorporated, further and better discovery, and a variation of the discovery order made by consent on 23 November 2010.  There was no second

page to the document that was filed in Court and which is on the Court file.  Rather, the document bears the intitulement of proceedings CIV 2011-404-000474 only. However, in the body of the document, there is a reference to the plaintiffs in proceedings CIV 2011-404-000474 and the defendants in proceedings CIV 2010-

404-003178, and an order is sought that the plaintiff in proceedings CIV 2010-404-

003178 be required to provide further and better discovery.

Further and Better Discovery

[4]      The applications referred to a number of affidavits filed by Mr Regan, and in particular, to his latest affidavit, dated 8 July 2011.  In that affidavit, it was asserted that  the  discovery  provided  omitted  a  large  number  of  relevant  documents. Reference was made to the fact that there were no bank statements available after February 2011; that there was a “curious void” relating to the “switching” of the New Zealand  Netball  Incorporated  contract  on  29  June  2011  from  the  third defendant, BA Partners Limited (in receivership and liquidation) to the sixth defendant, Brand Advantage Measurement and Consulting Limited; and that there has been inadequate disclosure of the background to the transaction by which Times House Digital Limited came to acquire various websites.

[5]      In response, Mr Gill filed an affidavit dated 7 September 2011.   Mr Gill stated that he was no longer in control of the third and fourth defendants in proceedings CIV 2011-404-000474 because they are in receivership and liquidation. His affidavit was sworn on behalf of the companies he still controlled.  He advised that he had discovered all relevant documents in his control.  Specifically, he stated that  further  copies  of  bank  statements  had  been  provided  for  Brand Advantage Measurement and Consulting Limited and CPG York Limited for the period 1 April

2011 to 8 July 2011.   He confirmed that he did not have any other documents relevant  to Netball New Zealand  Incorporated  in his possession or control.   He annexed to the affidavit financial information relating to Times House Digital Limited, and stated that he did not have any other relevant documents relating to that company in his possession or control.

[6]      In an email from the Court dated 13 September 2011, counsel were advised that the applications and notices of opposition had been referred to Lang J, who indicated that all matters should be able to be heard on 30 September 2011 as a full day had been allowed for the hearing.   He directed that counsel prepare for the hearing of all outstanding applications.

[7]      The application for further and better discovery has been heard by me today.

[8]      Mr Eichelbaum  had  not  prepared  written  submissions  relating  to  this application, but confirmed that he was in a position to address it when I raised the matter with him this morning.

[9]      Mr Eichelbaum on behalf of the defendants in proceedings CIV 2010-404-

003178 sought further and better discovery of the following documents:

(a)      documents held by the plaintiff in proceedings CIV 2010-404-003178 relevant to any background dealings with New Zealand Netball;

(b)up to date bank statements for the defendants other than those that are in receivership/liquidation; and

(c)      details of any documents  evidencing communications  between  the defendants and the news media, in particular, the National Business Review.

[10]     Mr  Pascariu  for  the  Gill  interests  submitted  that  there  were  various procedural deficiencies.  He noted the following:

(a)       that  the  applications  were  made  in  proceedings  CIV  2011-404-

000474, and that it was not open to the plaintiffs in those proceedings to seek further and better discovery in proceedings CIV 2010-404-

003178.  He noted that the proceedings are not consolidated; and

(b)that there is a difference between the first and second applications lodged by the plaintiffs in proceedings CIV 2011-404-000474, and the

third amended application dated 13 September 2011.  In particular, he noted that  an  order for  variation  of the discovery orders was  not sought in the initial applications.

[11]     I have some sympathy with Mr Pascariu’s complaint about the procedure that has been followed.  The documents which have been filed, with the exception of the third amended application dated 13 September 2011, are made under the intitulement for proceedings CIV 2011-404-000474 and proceedings CIV 2010-404-003178. However, the initial application only sought further and better discovery in proceedings  CIV  2011-404-000474,  and  the  third  amended  application  did  not contain any intitulement for proceedings CIV 2010-404-003178.  The Registry has treated the application as having been filed in proceedings CIV 2011-404-000474.

[12]   Separate applications should have been filed in both proceedings.   The proceedings have not been consolidated.  Rather, I have directed that they should be tried one after the other.  Considerable difficulty has been caused in the proceedings already because the basic rules have not been followed.   It would be helpful if counsel  could  ensure that  any future  applications  are filed  either in  the correct proceedings or in both sets of proceedings.

[13]     That issue aside, it was tolerably clear from the third amended application that the Regan interests (by which I mean the defendants in proceedings CIV 2010-

404-003178 and the plaintiffs in proceedings CIV 2011-404-000474) were seeking that the plaintiff in proceedings CIV 2010-404-003178 should be required to provide further and better discovery.  I have considered the application on that basis.

[14]     The jurisdiction to order further and better discovery is conferred by r 8.24, which provides as follows:

8.24Order for particular discovery against party after proceeding commenced

If at any stage of the proceeding it appears to a Judge, from evidence or from the nature or circumstances of the case or from any document filed in the proceeding, that there are grounds for believing that a party has not discovered 1 or more documents or a group of documents that should have been discovered, the Judge may order that party—

(a)      to file an affidavit stating—

(i)       whether  the  documents  are  or  have  been  in  the

party’s control; and

(ii)      if they have been but are no longer in the party’s control, the party’s best knowledge and belief as to when the documents ceased to be in the party’s control, and who now has control of them; and

(b)      to serve the affidavit on any other party.

[15]     Against the provisions of that rule, I turn to consider the three classes of document sought by the Regan interests.

[16]     In  relation  to  background  emails  between  the  Gill  interests  and  Netball New Zealand Incorporated, Mr Gill has sworn an affidavit deposing that no such emails are in his possession or control and that he has discovered all documents held by him.   Mr Regan for his part simply suggests that there is a “curious void” in relation to such documentation.

[17]     In the circumstances, I am not satisfied that there are grounds for believing that the Gill interests have failed to discover background documents sent to Netball New Zealand Incorporated.  Mr Gill has deposed that there are no documents in this category  in  his  possession  or  control.    In  the  absence  of  concrete  grounds  for believing that  that  assertion  is  untrue,  that  is  really the end  of the  matter,  and Mr Eichelbaum responsibly accepted that he could not advance this aspect of the application any further.

[18]     Mr Eichelbaum is seeking non-party discovery against New Zealand Netball

Incorporated. That may or may not assist his clients.

[19]     In  regard  to  further  bank  statements,  Mr  Pascariu  referred  to  Mr  Gill’s

affidavit stating that bank statements had been delivered for the period ended 8 July

2011.  He also confirmed that the plaintiffs in proceedings CIV 2010-404-003178, and  the  defendants  in  proceedings  CIV 2011-404-000474,  have  no  objection  to providing further bank statements as and when the same become available.  In the circumstances, no orders are required in this regard.

[20]     In  regard  to  any  correspondence  between  the  plaintiff  in  proceedings CIV 2010-404-003178, the defendants in proceedings CIV 2011-404-000474, and the media representatives, this matter was not foreshadowed either in the application or in the supporting affidavit from Mr Regan.

[21]     The issue is raised in the pleadings, but given the absence of any evidence suggesting that discovery to date is inadequate, I cannot be satisfied that there are any grounds for believing that the Gill interests have not discovered such documents as may exist in this regard. Accordingly, the application must fail in this regard.

Variation of Discovery Order

[22]     I now turn to the application to vary the discovery orders.

[23]     Again, Mr Eichelbaum had not prepared written submissions in relation to this issue, but he confirmed that he was in a position to deal with the matter.

[24]     Mr  Eichelbaum  submitted  that  the  discovery  order  made  by  consent  on

23 November 2010  was  causing difficulties.   He advised  that  the defendants  in proceedings CIV 2010-404-003178 and the plaintiffs in proceedings CIV 2011-404-

000474 had recently sent to the solicitors for the Gill interests some 20 Eastlight folders pursuant to their ongoing discovery obligations.  He suggested that this was oppressive, and that the parties should only be required to discover “adverse documents”.

[25]     The  third  amended  application  dated  13  September  2011  seeks  an  order varying the 23 November 2010 discovery orders.  There is, however, nothing in the body of the application to indicate what variation is sought.  Nor is there anything in Mr Regan’s affidavits which deals with the issue.

[26]     Rule 7.19 of the High Court Rules requires that an interlocutory application must state the relief sought and the grounds justifying that relief.

[27]     The relief sought and the grounds justifying that relief are not advanced either in the application or in the supporting documents.  The consequence is that Mr Pascariu    could    not    meaningfully    address    the    suggestions    made    by Mr Eichelbaum  in  the  course  of  today’s  hearing.    Understandably,  he  has  no instructions in relation to the same.

[28]     Accordingly, this application must fail as well.

[29]     In the event that the parties can agree on a variation to the existing discovery orders, then I would invite them to prepare a consent memorandum in that regard, and I will vary the orders accordingly.

Adjournment Application

[30]     I should also record directions I gave in relation to the application to adjourn the February 2012 hearing date.

[31]     Mr Eichelbaum’s application was prefaced in large part on the assertion that

the involvement of the eighth and ninth defendants in proceedings CIV 2010-404-

003178  would  extend  the proceedings  by requiring  additional  time for them  to prepare, as well as additional hearing time.

[32]     The eighth and ninth defendants have filed notices protesting the jurisdiction of the Court.   Yesterday, I received a consent memorandum from the plaintiffs in proceedings CIV 2010-404-003178, and counsel for the eighth and ninth defendants respectively.  By consent, a timetable was put in place to bring the objections on for hearing.  That timetable requires that the relevant documents be filed and served by late October 2011, and directs the Registrar to set down the application for hearing at the first available date thereafter.

[33]     In the circumstances, it seemed to me that it was premature to deal with

Mr Eichelbaum’s application for an adjournment.

[34]     Mr Eichelbaum requested that the application for an adjournment should itself be adjourned until the outcome of the protests to jurisdiction is known.

[35]     Mr Pascariu acknowledged the logic of that application, but was not in a position to consent to the same.  He suggested that other aspects of the application were deficient, and requested that I deal with those.  It seemed to me, however, that there  was  little  point  in  doing  so  because  the  likely  upshot  was  that  a  fresh application would be lodged by the Regan interests if the protest to jurisdiction failed.

[36]   Accordingly, I acceded to Mr Eichelbaum’s request, and adjourned the application for an adjournment of the February 2012 hearing.  That application is to be  heard  at  the  first  available  date  after  the  protest  to  jurisdiction  has  been determined.

[37]     Mr Eichelbaum  has  requested  leave to  file  a separate application  for  an adjournment in proceedings CIV 2010-404-003178.   Given my comments above, that is sensible and Mr Pascariu does not oppose that application.

[38]     Other than a notice of opposition by the plaintiff in proceedings CIV 2010-

404-003178, there are no further documents to be filed in regard to the application for an adjournment.

Non-Party Discovery

[39]     In  relation  to  the  non-party  discovery  orders  sought,  I  am  advised  by Mr Eichelbaum that both Times House Digital Limited and New Zealand Netball Incorporated have been served.  As I understand it from the bar, they were served with the original application, and also with the third amended application dated

13 September 2011.  No notices of opposition are on the Court files.

[40]     Mr Eichelbaum advises that he has been in email correspondence with the solicitors for New Zealand Netball Incorporated.  He suspects that it may be difficult to  reach  agreement  acceptable  to  both  parties  and  that  a  Court  order  will  be

necessary.  Mr Eichelbaum also advises that he has had no contact with Times House

Digital Limited.

[41]     I direct that any notice of opposition by either Times House Digital Limited or New Zealand Netball Incorporated should be filed and served within 10 working days  of  today’s  date.    Notices  of  opposition  should  be  accompanied  by  any supporting affidavit the parties wish to file.  Affidavits in reply are to be filed within a further five working days.   The Registrar is directed to set the matter down for hearing on the first available date thereafter.   Counsel are to file and exchange submissions not less than two working days prior to the date fixed for the hearing.

[42]     The  Registrar  is  to  ensure  that  a  copy of  this  judgment  is  sent  to  both

Times House Digital Limited and to New Zealand Netball Incorporated.

[43]     I am conscious that Times House Digital Limited and New Zealand Netball Incorporated were not present today.  If there are any difficulties in complying with these directions, I reserve to those parties the right to seek further orders from the Court.

Costs

[44]     Costs in relation to the application for an adjournment are reserved. [45]      In relation to the other applications, I direct as follows.

(a)      In relation to the application for further and better discovery and the application for variation of the 23 November 2010 discovery orders, the   plaintiffs   in   proceedings   CIV   2010-404-003178,   and   the defendants in proceedings CIV 2011-404-000474, are entitled to costs on a 2B basis.

(b)There should only be one costs award in favour of the plaintiffs/defendants and that is accepted by Mr Pascariu.  I anticipate

that counsel will be able to reach agreement regarding costs, but if there is any disagreement, then the matter is to be referred to me.

Leave to Continue the Proceedings

[46]     I have issued a separate minute in regard to this issue.

Wylie J

Z Kennedy:  [email protected]

M Pascariu: miha[email protected]

J Eichelbaum:   [email protected]

C Curran-Tietjens:  [email protected]