Public Trust v Kain
[2020] NZHC 1386
•19 June 2020
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2018-409-40
[2020] NZHC 1386
UNDER the Trustee Act 1956 IN THE MATTER
of an application by the trustee for directions under s 66 of the Trustee Act 1956
BETWEEN
PUBLIC TRUST
Plaintiff
AND
GEORGINA KAIN AND OTHERS [as per
attached Schedule] First Defendants
AND
MARNIE COUPIE FORCER KAIN AND OTHERS
Second Defendants
AND
WILLIAM ALEXANDER SAVIER COUPER
Interested Party [Deceased, formerly an Interested Party]
Hearing: 8 June 2020 Appearances:
B D Gray QC for Plaintiff
K P Sullivan and J D Haig for the First Four Named First Defendants
M J Wallace for the Sixth to Eighteenth Named First Defendant and for the First to Thirteenth Named Second DefendantsA V Foote for the Fifth Named First Defendant (Mary Hutton) J F Anderson QC for the Nineteenth to Twenty First and Fourteenth to Sixteenth Named Second Defendants
Judgment:
19 June 2020
JUDGMENT OF ASSOCIATE JUDGE LESTER
This judgment was delivered by me on 19 June 2020 at 3.00 pm
pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar 19 June 2020
PUBLIC TRUST v KAIN & ORS [2020] NZHC 1386 [19 June 2020]
SCHEDULE OF PARTIES
CIV-2018-409-40
GEORGINA KAIN, GEORGE CHARLES KAIN, GEORGE HARRY COUPER KAIN, MARY HUTTON, MARNIE COUPE FORCER KAIN, JACK KAIN, MOLLY KAIN, RACHEL KAIN, STANLEY KAIN, WOLSLEY KAIN, GEORGE KAIN,
ASTA KAIN, MADELINE KAIN, GEORGE KAIN, MICHAEL KAIN, RUPBERT KAIN, SAMUEL KAIN, GEORGIA HUMPHREYS, CONSTANCE HUTTON,
HARRIET HUTTON
First DefendantsMARNIE COUPIE FORCER KAIN, JACK KAIN, MOLLY KAIN, RACHEL
KAIN, STANLEY KAIN, WOLSLEY KAIN, GEORGE KAIN, ASTA KAIN,
MADELINE KAIN, GEORGE KAIN, MICHAEL KAIN, RUPERT KAIN, SAMUEL KAIN, GEORGIA HUMPHREYS, CONSTANCE HUTTON, HARRIET
HUTTON, DAVID WHYDE,
KIRSTY MARGUERITE COUPLER MASTERSON and ELIZABETH DIANE COUPER FRENDIN
Second Defendants
WILLIAM ALEXANDER XAVIER COUPER
Interested Party [Deceased, formerly an Interested Party]
[1] This application arises from an application by Public Trust for directions under s 66 of the Trustee Act 1956 (the Act) in respect of the Waitaha Trust and Middle Road Block Trust. The Waitaha Trust and the Middle Road Block Trust are part of a larger group of trusts/estates and referred to as the “Couper-Kain Group”.
[2] The background to the proceeding is referred to in an earlier judgment (the Discovery Judgment).1 In the Discovery Judgment, I declined the First Four Named First Defendants’ (the Kains) application for discovery and that judgment should be read in conjunction with the present one. I say that as the Discovery Judgment confirms the limited scope of Public Trust’s substantive application. Because the scope of the proceeding is the starting point to consider the applications, it is necessary to briefly summarise what was said in the Discovery Judgment in that regard and to record Mr Gray QC’s (counsel for Public Trust) confirmation of that scope.
[3] In the Discovery Judgment, Mr Gray confirmed that Public Trust was not seeking substantial factual guidance on distribution, only limited to guidance as to questions of law.2 Similar confirmation of Public Trust’s position are found at [26],
[30] and [41].
[4] The Kains have brought applications calling for further and better particulars of the statement of claim in respect of discovery and seeking an order that an independent software expert attempt to recover records from the Public Trust computer system.
[5] A further application seeking a direction that Public Trust answer positive allegations raised in the amended statement of defence, was withdrawn.
Questions of law only
[6] Mr Gray confirmed the purpose of the present application is to provide what he described as a “secure legal foundation” from which Public Trust could then go on to consider what it should do with the trusts, which are the subject of this proceeding. He emphasised the starting point was the relief sought, that is, the directions in the statement of claim.
[7] Mr Gray said Public Trust was not looking for, nor did it require, any factual findings to be made in respect of matters set out in the background recited in the statement of claim, and he submitted that the issues raised in the directions sought
1 Public Trust v Kain [2019] NZHC 2789, (2019) 5 NZTR 29-019.
2 At [16].
were purely legal. He acknowledged it was only if a factual proposition in the statement of claim was central to a direction that there would be a need for a factual finding, but again, his position was that no such findings were required.
[8] Accordingly, Mr Gray acknowledged in the event the court made some, or all, of the directions sought, no factual findings would be inherent in such directions. No estoppel in respect of disputed matters of fact set out in the statement of claim would arise, as the Kains are not accepting many of the propositions pleaded in the claim.
[9] This was of practical concern to the Kains because they said the way the factual background as pleaded in the statement of claim, albeit disputed by them, indicated the starting position of Public Trust in respect of those factual issues. The Kains say why else would the pleading be framed in the way it is if it did not represent what Public Trust believed.
[10] Mr Gray addressed this by saying the narrative reflected in the statement of claim was based on a review of an earlier judgment of this Court.3 He said the pleading reflected a recognition by Public Trust that the Court had to be persuaded of the need to give directions and, in a practical sense, needed to see there was a controversy.
[11]Accordingly, Public Trust acknowledged:
(i)In the event there were directions, such would not represent the court finding the narrative in the statement of claim was factually correct.
(ii)Public Trust would not rely on s 69 of the Act to say that any substantive decisions it makes in respect of these Trusts, that is, any distributions it may make following obtaining directions, were immune from challenge by virtue of such directions. Public Trust would have protection in the event of a challenge only in respect of the legal questions covered by any directions made. Again, this was Mr Gray’s position in the discovery hearing.
3 Kain v Hutton HC Christchurch M198/00, 3 December 2004, per Panckhurst J.
(iii)Public Trust is on notice that the Kains do not accept the accuracy of parts of the narrative in the claim and Public Trust will need to ensure any substantive decision it makes in respect of the Trusts is based on correct information. Again, that is a matter for the future.
[12] Against this background, Mr Gray submitted there was no need for the particulars sought as the paragraphs in the statement of claim preliminary to the relief sought were by way of background only, and to give context to the fact that Public Trust was seeking directions on questions of law. What assets were in particular trusts or what distributions had occurred in the past did not need to be addressed at this point. In short, Mr Gray submitted Public Trust was involved in an incremental process; first the establishment of the “secure legal foundation” and then the need for a factual enquiry to ensure Public Trust reached decisions on a correct factual basis and with the benefit of all relevant information.
Particulars
[13] The application for particulars refers to rr 5.17 and 5.21 of the High Court Rules 2016. Rule 5.17(1) provides:
(1) Distinct causes of action and distinct grounds of defence, founded on separate and distinct facts, must if possible be stated separately and clearly.
Rule 5.21(1) provides:
5.2Notice requiring further particulars or more explicit pleading
(1)A party may, by notice, require any other party—
(a)to give any further particulars that may be necessary to give fair notice of—
(i)the cause of action or ground of defence; or
(ii)the particulars required by these rules; or
(b)to file and serve a more explicit statement of claim or of defence or counterclaim.
[14] Rule 5.21(1) empowers a party to issue a notice requiring another party to give further particulars as may be necessary to give fair notice of a cause of action or the
particulars required by the Rules. The particulars the Rules require are set out in r 5.26(b) as follows:
(b) must give sufficient particulars of time, place, amounts, names of persons, nature and dates of instruments, and other circumstances to inform the court and the party or parties against whom relief is sought of the plaintiff’s cause of action; and
[15] The requirement to give particulars in respect of a cause of action does not fit easily with an application by trustees for guidance on legal questions. Public Trust is not asserting a cause of action against the Kains.
[16] If the resolution of a factual proposition was central to the consideration of a direction sought by the trustees, then particulars in respect of that proposition may well be required together with discovery. There may be the need for evidence to allow the court to rule on such a disputed factual proposition in order to give the direction. It is inherent in what I have said about Public Trust’s position that it does not consider there are any such factual propositions in this case.
[17] The Kains asked for 14 paragraphs of the statement of claim to be particularised. Particulars were provided in respect of three paragraphs. Accordingly, it is necessary to address the remaining 11 paragraphs.
Paragraph 21 of the statement of claim
[18] This is a pleading that further farms in Hawke’s Bay were acquired by Tom Couper over the course of his life. The Kains, in their response, admit that paragraph and say the equity for the purchases came from “the family capital base” and others.
[19] The Kains sought details of the “further farms” acquired by Tom Couper. Public Trust says the request is not relevant to the questions of law, upon which the directions are sought.
[20] I do not see how the court, when it comes to consider the application for directions, will be assisted in knowing whether the late Mr Couper purchased three, four or 10 more farms during his lifetime and when and where those purchases
occurred. The Kains, in their submissions, say the definition of what assets are within the Couper-Kain Group (referred to below) is relevant to one of the directions sought, that is, whether the trustees were required to take into account what beneficiaries have received from the Couper-Kain Group as a whole (direction 87(a)(iii)). The Kains say they will be left guessing in the absence of particulars. I do not accept this submission. Mr Sullivan, counsel for the Kains, was not able to explain to me how the history of farm ownership would influence the court in respect of the directions sought.
Paragraph 22 of the statement of claim
[21] This is a pleading that some of the family interests in South Canterbury were gifted, transferred or distributed to some of the children of Janet Kain. The pleading concludes “[t]he plaintiff does not know the detail of those interests or who benefitted from them.”
[22] The particulars sought asks how and when Public Trust was provided with the information in the pleading.
[23] The Kains’ amended statement of defence substantially admits this paragraph. I do not see how and when Public Trust received this information is relevant. The Kains say, knowing how and when Public Trust received this information is also relevant to direction 87(a)(iii). Details as to how and when Public Trust learnt of distributions to beneficiaries from other trusts in the Couper-Kain Group is beside the point, when the question the court is asked to give directions on is whether the fact of such distributions should be considered by the trustees in making further distributions. If the court says they must be considered, then Public Trust will have to acquire an accurate picture of prior distributions. If the directions from the court are that Public Trust is not required to take into account other distributions to beneficiaries from other trusts in the Couper-Kain Group, then that information will be irrelevant, being a factor the trustees need not consider.
Paragraph 23 of the statement of claim
[24] This is a pleading that Tom Couper, Janet Kain and their parents established 15 family trusts, two estates (ED Couper and Janet Kain), and associated corporate
entities collectively referred to as “the Couper-Kain Group”. The particulars ask what trusts and estates are referred to. The answer is by reference to [19], [21] and [23] of the judgment of Panckhurst J.4
[25] The Kains say the trusts should be particularised by notice or amended pleading, rather than by reference to a previous judgment. There is no strict rule that particulars must be in an amended statement of claim. The Kains note that some of the entities referred to in the judgment of Panckhurst J are understood by them to be outside of the Couper-Kain Group, and some are not identified. It is said Public Trust should have a very clear understanding of the Couper-Kain Group’s constituent parts. Clearly, Public Trust will have to have a precise understanding of the entities of which it is trustee, but in respect of the directions sought, whether the Couper-Kain Group contains 14, 15 or 16 trusts is not material.
Paragraph 30 of the statement of claim
[26] This is a pleading that the Waitaha Trust’s primary asset is 100 per cent of the shares in Waitaha Holding Company Limited, which owns Waitaha Farm, which it leases to the Waitaha Trust.
[27] The particulars sought asked what are the other assets in the Waitaha Trust, what is the relationship between Waitaha Trust and Ponui Station and when did Waitaha Trust’s lease with Middle Road Block Trust’s land cease?
[28]Again, Public Trust says these directions are not relevant.
[29] This is another area where the Kains say they need to see the composition of the assets so they are not taken by surprise and they say the issue of the composition of the Trusts is relevant to the directions sought at paragraph 87(a)(iii) already referred to, and to paragraph 87(a)(ii) which asks whether:
The Plaintiff is required to take into account the interests of the beneficiaries. This depends on the particular circumstances of the trust and the beneficiaries, but may include the extent to which a beneficiary would benefit from
4 Kain v Hutton, above n 3, at [19], [21] and [23].
a distribution, the financial needs of the beneficiaries and, if its beneficiaries are children, the extent to which their needs will be met by their parents.
[30] I do not consider the particulars sought to be relevant. What, if any, additional assets are in Waitaha Trust, in addition to the primary assets, will not impact on the directions that have been sought.
[31] The nature of the business relationship between the Waiaha Trust and Ponui Station and when the Middle Road Block Trust land lease came to an end, are details on which the directions sought will not turn.
Paragraph 49 of the statement of claim
[32] This paragraph pleads that Janet Kain’s children received assistance from the “family trusts”. The Kains ask what constitutes the “family trusts” in this paragraph?
[33] While not accepting the relevance of the enquiry, Public Trust advised the “family trusts” refers to the 15 trusts and two estates in the Couper-Kain Group.
[34] The Kains say that from which trust the children of Janet Kain received assistance should be specified, given whether or not disparity or the quality of benefits between beneficiaries is central to the directions sought.
[35] The actual particular sought was to ask what constitutes the “family trusts” referred to, that question has been answered. From which trusts Janet Kain did receive assistance may become relevant at the next stage of Public Trust’s staged process, but is not relevant now.
Paragraph 50 of the statement of claim
[36] This pleads that Public Trust understands the male Kain children had typically received more than their sisters.
[37] The Kains ask who are the male children who received more than their sisters, when that assistance was given, how much more was received, what was meant by “typically”, and from whom was the information was provided? These requests are
opposed on the grounds of relevance. The Kains say they are entitled to be informed of the information sought as it relates to the disparity/equality question raised in the directions.
[38] This is in the same category as others already addressed. Depending on the directions that are made in respect of the principle of equality and what is known as the “Deed of Equality”,5 Public Trust may have to get to grips with the detail of this information.
[39] If the court considers the making of a direction is dependent on the accuracy of this pleading (which is denied), then in a practical sense, Public Trust is taking the risk the direction will not be given. Given the pleading is disputed, a direction will only be given if the court considers that the truth of the disputed pleading will not be material. This comes back to the high level of abstraction with which the directions sought by Public Trust are framed.
[40] Public Trust has chosen to seek directions divorced from the facts and has done so deliberately so as to avoid the types of factual questions posed in the application for particulars.
Paragraphs 63 and 64 of the statement of claim
[41] I deal with these two paragraphs together. In paragraphs 63 and 64, Public Trust pleads what it has taken from the decision of Panckhurst J.
[42] The Kains ask Public Trust to specify where in the judgment of Panckhurst J, the findings referred to in the pleading were made. Public Trust says this is a matter for interpretation of the judgment and submission. I agree.
Paragraph 68 of the statement of claim
[43] This is a pleading referring to Public Trust being appointed trustee on 6 March 2006 of various trusts and estates; this being the Couper-Kain Group referred
5 A deed of family arrangement was negotiated by some members of the family in June 1997 and is referred to as the Deed of Equality.
to earlier. The pleading, after listing numerous trusts, concludes “[t]he plaintiff also “manages other entities related to those Trusts”.”
[44]The Kains ask what other entities have been managed.
[45] Again, Public Trust says this question is not relevant. The Kains reply that the detail is relevant to properly inform them of the entities within the Couper-Kain Group under Public Trust’s control and therefore, what is within “the rubric of equality of treatment.”
[46] This is similar to previous categories discussed. In the event Public Trust is directed that it must take into account the principle of equality, it will need to consider what provision has been made for beneficiaries over the years, but that question is not relevant to the bare legal question posed by Public Trust.
Paragraph 72 of the statement of claim
[47] This is a pleading that the Waitaha Trust and Middle Road Block Trust are undistributed.
[48] The Kains ask what income distributions have been made from the trusts. They say the pleading implies no capital distributions have been made but is opaque as to whether any income distribution has been made. This is opposed on the grounds that income distributions are not relevant to the directions sought. I agree. Again, this is similar to previous categories.
Paragraph 80 of the statement of claim
[49] This is a pleading that the Kains have told Public Trust their view is the Deed of Equality requires that all of the children of Janet Kain receive an equal amount in the distributions of all trusts in the Couper-Kain Group. This pleading is denied by the Kains.
[50] The particular ask “[w]hen, who and how did the Kain siblings express this view?” This is resisted on the grounds of relevance. The Kains say they are entitled
to be informed of details of how the information relied on was obtained by Public Trust.
[51] This is similar to categories already referred to. The pleading is denied and if it proves to be central to the particulars, then the risk the directions will not be given falls on Public Trust. If the pleading is not relevant, then particulars will not be required.
[52] My view is that the particulars are not relevant, given the denial. The Kains in their defence, deny and refer to four further paragraphs of their statement of defence. That tells me the Kains understood the pleading and were able to respond to it.
[53] Accordingly, all of the applications for particulars are dismissed. That outcome follows from the re-confirmation by Public Trust of the limited nature of their application and their confirmation that if declarations are made, such will not involve an implicit finding that a factual proposition denied by the Kains had been established.
Application for variation of discovery order
[54] This is a reference to an order I made on 31 October 2019, requiring discovery of memoranda of wishes held by the parties.6
[55] In the Discovery Judgment, I set out the documents sought by the Kains in an informal application for discovery.7
[56] The request for discovery was wide ranging, essentially aiming to catch-all any documents held by Public Trust in relation to the Deed of Equality or the principal of equality, including any distributions made by the trustees of any of the trusts within the Couper-Kain Group in reliance on, or following consideration of the Deed of Equality or the principal of equality. The application also sought documents related to any consideration of the memoranda of wishes of Mr Couper of the trustees of trusts within the Couper-Kain Group.
6 Public Trust v Kain , HC Christchurch CIV-2018-409-40, 31 October 2019.
7 Public Trust v Kain, above n 1, at [3].
[57] I declined the application for discovery save for it being common ground that memoranda of wishes in relation to the Waitaha Trust or Middle Road Block Trust would be given by all parties. As already noted, the application was declined because of Public Trust’s unequivocal confirmation that the directions it sought were only in relation to legal questions and thus discovery relating to factual issues was not required.
[58] The Kains now apply under rr 8.17 and 8.19 of the High Court Rules for a variation of the discovery order relating to the memoranda of wishes, or for particular discovery as to whether specific memoranda of wishes and various further identified documents are, or have been, in the possession of the plaintiff.
[59] The minute I issued on 31 October 2019, dealing with discovery of the memoranda of wishes, stated the documents to be discovered were; “any memoranda or statement of wishes [the parties] hold, save for those that have already been circulated to all parties by the Public Trust.”8
[60] The Kains say that order is wide enough to capture memoranda of wishes relating to the other trusts in the Couper-Kain Group. I do not agree with that conclusion given my rejection of the broad discovery sought by the Kains in their original application. The context of the discovery direction is clear from [2] of the Discovery Judgment.
[61] It is common ground that further memoranda of wishes have recently been located and produced pursuant to the parties’ ongoing obligations of discovery. The Kains also seek documents which they say are intended to ensure that the memoranda of wishes are not looked at in a vacuum.
[62] The Kains seek documents relating to how the memoranda of wishes were conveyed by the settlor. That is, any covering letter or email. They say that if a particular memorandum of wishes was sent with a covering letter, then the existence of that letter should be recorded in the discovery and similarly, if a memorandum of
8 Public Trust v Kain, above n 6, at [8].
wishes was sent by email. They say the listing and exchange protocols under sch 9 of the High Court Rules contemplate such detail being given.
[63] Accordingly, the Kains say they are not seeking to expand the discovery that was ordered but seek to refine or amend discovery to obtain the contextual information.
[64] Seven categories of documents were sought in the application. Some of the documents sought in those categories were produced shortly before the hearing on 8 June 2020. However, it is necessary to review each of the categories sought in respect of the outstanding documents.
Category One
[65] Five specific documents were listed in an affidavit by a former trustee, Mr Wayne Keith Startup, sworn 19 November 2001. Two of the documents were described as “memorandum of guidance” and three documents described as “memorandum”. Three of the five documents identified have now been discovered. Two of the documents have not been produced as they are memoranda of wishes for trusts and not subject to the directions sought in this proceeding.
[66] The Kains advanced their application to obtain the memoranda of wishes relating to different trusts on the basis the minute of 31 October 2019 was not restricted to memoranda relating to the Waitaha Trust or Middle Road Block Trust. I have already addressed that point.
[67] As to whether the court would be assisted in making the directions sought, by being aware of memoranda of wishes in respect of other trusts in the Couper-Kain Group, is a matter to be dealt with in subsequent submissions.
Category Two – covering letters, faxes or emails
[68] As I have said, the Kains say how the memoranda of wishes were sent or received is relevant, as it goes to the authorship of the wishes. Four covering emails
have been produced. Public Trust has now agreed to discover those documents to the extent it has the records without conceding their relevance.
[69] An order is sought that there be a supplementary affidavit in respect of those documents, including steps taken to locate such documents. I will return to this request below.
Categories Three to Seven
[70] Categories Three to Seven, refers to the fact that memoranda of wishes which have been produced refer to documents that were attached but which have not been provided by the party providing discovery. The Kains say that where a memorandum of wishes referred to, or attached, a document, such are part of the context for the reader of the wishes, and that without those documents the documents are incomplete. As the attachments are part of the wishes, they need to be produced.
[71] Public Trust resists this application on the basis that it is potentially an open-ended exercise, in particular if it is to include not only documents attached, but documents referred to, then if upon reviewing the attachments they in turn refer to other documents, the process could be ongoing.
[72] I do not consider this a proper basis not to produce the attachments. Had a memoranda of wishes been complete with the attachments, for example, stapled to make it one document, I do not think it would be suggested that the document be disassembled so that only the memoranda of wishes is disclosed.
[73] Nor do I not consider the Kains’ request involves some open and never-ending process of disclosure. The fact that the documents requested were attached to, or referred to, in the memorandum of wishes means that Mr Couper considered them to be significant and that is all the more so when it is quite clear that some of the memoranda have been prepared by his legal advisors. The inclusion of memoranda of wishes from other trusts may suggest Mr Couper intended the various memoranda to be considered as a group.
[74] Mr Gray said Public Trust intended to file an affidavit to produce the memoranda of wishes in this proceeding. On that basis alone, the full documents need to be produced.
[75] The application for discovery of the attachments is made by reference to a schedule attached to an email dated 23 December 2019, which set out the categories of documents sought. Category Four, Five and Six all involved attachments or documents referred to in a memoranda of wishes. Accordingly, discovery of those Categories is required.
Category Seven
[76] The document that was referred to in submission in respect of Category Seven, was a letter from Mr Couper addressed “Dear Liz” dated 11 September 2016. The first part of that letter refers to the purchase of Waitaha Station and attaches a letter from Mr Brenton-Rule, described as his “accountant”. The second part of the letter refers to what Mr Couper wanted to happen to Waitaha Station.
[77] Mr Brenton-Rule’s letter in turn, attached a balance sheet dated 30 June 1973. While this may appear to be an example of Public Trust’s concerns about there being attachments referring to attachments ad infinitum, in respect of the balance sheet it is expressly referred to as being attached to Mr Brenton-Rule’s letter, in turn having been attached to the letter of 11 September 2016.
[78] On that basis, I treat that as being in the same category as the other documents attached to, or incorporated by reference, into memoranda of wishes.
[79] Beyond that degree of direct annexation/incorporation, in the absence of some basis for believing that more remote attachments/incorporations were actually part of the memoranda of wishes, then they may not be relevant. The point is that if Mr Couper, in his memoranda of wishes, attached or referred to a document, then it was intended by him to form part of those memoranda of wishes, or at least to be read at the same time as part of the context in which the wish was to be considered. If more remote attachments or annexures in turn referred to in annexures or attachments were not attached or produced by Mr Couper, then he may well not have intended them to
be part of his memoranda of wishes, save perhaps in the case where he knew the recipient would have that more attachment.
[80] While the parties will not know what may be referred to in remote attachments until the documents are received, I do not consider the possibility that attachments may in turn refer to further attachments to be a basis for not requiring discovery of documents referred to, or said by Mr Couper to accompany, or be attached to, memoranda of wishes. Whether remote attachments should be disclosed will depend on what they may be.
Independent report
[81] This issue arises from an affidavit of Mr Victor John Charles sworn 24 April 2020, who is an inhouse IT manager at Public Trust. He explains in his evidence, being given an instruction to attempt to restore the attachments to six emails in an Outlook data file of Mr Steve Gibbons’ email account. Mr Charles explains that he has attempted to restore the attachments without success.
[82] The Kains suggest that Public Trust has failed to make proper enquiries as to the unrecoverable attachments.
[83] The Kains ask why Public Trust has not taken the obvious step of searching all internal email addresses that the emails were sent to, noting that in particular some of the emails were sent by Mr Gibbons to two Public Trust employees, a Mr Snelling and a Mr Donovan.
[84] Mr Charles’ affidavit goes into some of the technical reasons as to why his attempt to recover the attachments was not successful. No expert evidence in reply has been provided as to why the approach adopted by Mr Charles represented an inadequate attempt of the location of the missing attachments. However, there is something in the point as to the absence of an explanation concerning why checks were not made as to the recipients of the emails to which the attachments are missing. It may be that was done, but without success, and that needs to be explained.
[85] Accordingly, Public Trust are to file a further affidavit confirming it has checked the email records of Public Trust employee recipients of Mr Gibbons’ emails to see if the attachments are recoverable in that way.
[86] In the absence of any challenge to the methodology adopted by Mr Charles, I am not satisfied that an independent forensic assessment needs to be carried out. However, I am satisfied that Public Trust needs to address whether its employee recipients of Mr Gibbons’ emails provides a means of recovering or locating the missing attachments.
[87] The amended application sought that the report from the independent computer software expert address whether the emails and attachments and the underlying metadata are able to be accessed and restored. Mr Charles is to address these issues as well, albeit to the extent they are not covered in his first affidavit.
Timetabling directions
[88] By agreement, the following timetabling matters in advance of the hearing scheduled for 19-23 October 2020 are made:
(i)close of pleadings date Wednesday 1 July 2020;
(ii)plaintiff’s affidavits to be filed and served by Wednesday 15 July 2020;
(iii)affidavits in response to be filed and served by Wednesday 26 August 2020;
(iv)an agreed statement of facts, if any, to be filed by Wednesday 16 September 2020;
(v)submissions for the plaintiff to be filed by Wednesday 23 September 2020;
(vi)a common bundle of documents to be filed and served by Wednesday 30 September 2020; and
(vii)submissions for the Kains to be filed by Wednesday 7 October 2020.
Summary of findings
[89]The application for particulars by the Kains is dismissed.
[90] In respect of discovery, as to Category 1, that is memoranda of wishes relating to other trusts, this is deferred for further submissions. Kains’ submissions in support to be filed by Friday 19 June 2020. Submissions in reply to be filed by Friday 26 June 2020. For the avoidance of doubt, that there are to be further submissions on this issue does not impact on the directions made in respect of discovery Categories 3-7, to the extent such includes memoranda of wishes relating to trusts of which the Kains are not beneficiaries.
[91] In respect of Category 2, this is dealt with by agreement. As I have said, without conceding relevance, Public Trust will make the material available.
[92]Categories 3 – 7, application is allowed.
[93] Independent report, the application is dismissed, but with the direction that Public Trust is to address, by further affidavit, recovering the missing email attachments from Public Trust employee recipients of the emails and in relation to the query about metadata.
[94] I make no directions as to the timing of these steps as such were not addressed by counsel. Counsel are aware of the hearing date. If the orders cannot be met within 15 working days, counsel are to request a telephone conference to address timing.
Costs
[95] Costs are reserved. The parties can make submissions in respect of costs, once the remaining discovery issue has been addressed.
Associate Judge Lester
Solicitors:
Wilson Harle, Auckland (for Plaintiff)
Copy to counsel: B D Gray QC, Auckland
Izard Weston, Wellington (for First to Fourth Named First Defendants)
Copy to counsel:K P Sullivan and J D Haig, Barristers, Wellington
Duncan Cotterill, Christchurch (for Fifth Named First Defendant, Mary Hutton)
Copy to counsel: T C Weston QC
M J Wallace, Barrister, Christchurch (for Sixth to Eighteenth Named First Defendants and First to Thirteenth Named Second Defendants)
Vicki Ammundsen Trust Law Limited, Auckland (for Nineteenth to Twenty First and Fourteenth to Sixteenth Named Second Defendants) (Georgia Humphrey, Constance Hutton and Harriet Hutton) Copy to counsel: J F Anderson QC, Barrister, Auckland
Succeed Legal, Wellington (for Interested Party)
A R Galbraith QC, Barrister, Auckland (for Interested Party)
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