Pyne Gould Corporation Limited v Bath Street Capital Limited

[2016] NZHC 1410

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-002263 [2016] NZHC 1410

BETWEEN

PYNE GOULD CORPORATION

LIMITED Plaintiff

AND

BATH STREET CAPITAL LIMITED First Defendant

ANDREW HOWARD BARNES Second Defendant

Hearing:	24 June 2016
Appearances:	G K Holm-Hansen for Plaintiff M Eastwick-Field for First and Second Defendants
Judgment:	24 June 2016

JUDGMENT OF VENNING J

Solicitors:           Simpson Grierson, Auckland

Russell McVeagh, Auckland

Copy to:            R B Stewart QC, Auckland

M Ring QC, Auckland

PYNE GOULD CORPORATION LTD v BATH STREET CAPITAL LTD [2016] NZHC 1410 [24 June 2016]

[1]      This is an application for non-party discovery against Milford Funds Limited and Goldman Sachs New Zealand Limited.  The application has been served on the defendants and on the non-parties.  The non-parties have taken no formal steps in relation to the application.

[2]      Counsel for the plaintiff and the defendants have largely resolved issues between them in relation to the application.   The one outstanding issue on which there is no agreement at present is whether the category of approved persons on behalf of the plaintiff in relation to the confidentiality protocol is to include Ms O’Rourke and Mr Walker.   The defendants object to their inclusion as approved persons at this stage of the process.  They suggest that they should be replaced by “any other member of the Board of Pyne Gould Corporation Limited”.

[3]      After discussion with counsel I am satisfied that rather than try and deal conclusively with that issue at this stage, it is sensible given the large measurement of agreement between the parties and the progress made to date in relation to the application that it be dealt with in a staged way.  At this stage Ms O’Rourke and Mr Walker will not be included as approved persons.  At the present time the reference to them is replaced by "any other member of the Board of Pyne Gould Corporation Limited”.

[4]      After the discovery process provided for in the further orders to be made is completed leave can be reserved to the plaintiff to seek to have certain identified documents or categories of documents referred to Ms O’Rourke and/or Mr Walker when further reason for that can be provided.  I consider that preferable to attempting to deal with the matter in a vacuum.

[5]      On that basis the following orders are made largely in accordance with the joint memorandum:

(a)       the non-parties file and serve their lists of documents by Friday 22

July 2016 in accordance with paragraph 1(a) of the plaintiff’s notice

of interlocutory application;

(b)inspection of the non-party discovery is to take place in accordance with the protocol set out at paragraphs 4(a)-(d) of the defendants’ notice of opposition, also set out at Schedule One attached;

(c)      the plaintiff is to pay the non-parties’ reasonable costs of complying with the orders above;

(d)“Any  other  member  of  the  Board  of  Pyne  Gould  Corporation Limited”  is  substituted  for  Ms  O’Rourke  and  Mr  Walker  as “approved persons” on behalf of the plaintiff;  and

(e)       leave reserved to the plaintiff to apply further to provide relevant

documents to Ms O’Rourke and Mr Walker.

[6]       Costs on this application as between the parties to the proceeding are to lie where they fall.

Venning J