Rawlings v Sinnadurai
[2025] NZHC 1415
•30 May 2025
[REDACTED JUDGMENT]
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2023-409-304
[2025] NZHC 1415
BETWEEN DUNCAN GEORGE RAWLINGS and LAURA AMY RAWLINGS as
administrators of the Estate of Christopher George RawlingsPlaintiffs
AND
DAISY SINNADURAI
Defendant
Hearing: 16 May 2025 Appearances:
A J Summerlee and J J Taylor for Plaintiffs Defendant appears in person
Judgment:
30 May 2025
JUDGMENT OF ASSOCIATE JUDGE PAULSEN
This judgment was delivered by me on 30 May 2025 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date:
RAWLINGS v SINNADURAI [2025] NZHC 1415 [30 May 2025]
[1] The plaintiffs are the administrators of the estate of Christopher George Rawlings. Ms Sinnadurai was a neighbour of Mr Rawlings at relevant times.
[2] The plaintiffs’ claim relates to transactions entered into by Mr Rawlings, specifically the sale of a property at Arrowtown and the transfer of sums of money [REDACTED] to Ms Sinnadurai or on her behalf from Mr Rawlings’s bank accounts at times that the plaintiffs consider Mr Rawlings lacked capacity.
[3] The plaintiffs are seeking, among other things, payment of the [REDACTED] and damages for losses consequent upon the sale of the Arrowtown property. Ms Sinnadurai denies the claims that have been made against her.
[4] Ms Sinnadurai has had several lawyers acting for her. She is presently unrepresented and raises a concern about her ability to present her case adequately without legal representation. She says English is her fourth language. While I acknowledge the difficulties Ms Sinnadurai faces in representing herself, I am satisfied she is proficient in the English language and understood the orders being sought and adequately expressed her position in relation to them.
[5]In the application before me the plaintiffs seek:
(a)further discovery;
(b)orders for inspection;
(c)further particulars of Ms Sinnadurai’s statement of defence; and
(d)an order striking out Ms Sinnadurai’s counterclaim.
[6] Ms Sinnadurai did not file a notice of opposition to the application but did file memoranda and a lengthy affidavit. Ms Sinnadurai is prepared to provide further discovery and inspection to the extent it is within her power to do so. She has agreed to allow inspection of her electronic devices. She is also able to provide the further particulars of her defence (which are few in number) and does not wish to pursue her counterclaim.
[7] I explained to Ms Sinnadurai the orders I proposed to make. I understand she does not oppose them but, in any event, I will give brief reasons.
The counterclaim
[8] Ms Sinnadurai’s case is that Mr Rawlings made payments to her under a promissory note [REDACTED]. She filed a counterclaim for a further [REDACTED] under the promissory note. The plaintiffs applied to strike out the counterclaim on the ground that Ms Sinnadurai can have no cause of action in respect to an uncompleted gift. Ms Sinnadurai says she understood the counterclaim had already been withdrawn and she does not wish to pursue it. I will make an order recording that it is discontinued.
The discovery order
[9] The parties were ordered to provide standard discovery under a direction of Associate Judge Lester of 7 March 2024. Ms Sinnadurai has filed two undated affidavits of documents.
[10] It is clear Ms Sinnadurai has not fully complied with her discovery obligations. The affidavits do not adequately describe the steps taken by Ms Sinnadurai to search for relevant documents and such steps as have been taken are not adequate. The affidavits also do not comply with the listing and exchange protocols in sch 9 of the High Court Rules 2016 (the Rules). It is also clear from Ms Sinnadurai’s affidavit and submissions that she is likely to have further documents in her control that should be disclosed.
[11] Ms Sinnadurai has not made enquiries of the lawyers who have previously acted for her to obtain the documents they are holding on her behalf. In her affidavit she refers to an audio clip on her old phone which would appear to be directly relevant to the reasons why the payments were made to her that does not appear in her affidavits, as well as other “audios”. I also note that in her first affidavit of documents she states:
There are some uncertainty on my part as to some aspects of this affidavit. I cannot recall documents which I gave to solicitors who have previously acted
for me in some way in connection with this proceeding including Kirsty O’Connor, Michael O’Regan, Anselm Williams, and Tracey Patient, but believe that those communications would likely be privileged in any event.
[12] In addition, Ms Sinnadurai mentioned other documents, including in relation to discussions with insurers concerning fire damage to her garage (said to have been caused by Mr Rawlings and providing justification for some of the payments made to Ms Sinnadurai), and held by her bank in Sri Lanka which must be disclosed if they are relevant to the matters in issue.
[13]The plaintiffs are seeking further discovery of:
(a)Mr Rawlings’s 2019 diary; and
(b)any native electronic version of the promissory note.
[14]The application is made under r 8.19 of the Rules, which provides as follows:
8.19 Order 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 the other party or parties; and
(c)if the documents are in the person's control, to make those documents available for inspection, in accordance with rule 8.27, to the other party or parties.
[15] In making an assessment of whether to order further discovery under r 8.19 the Court generally adopts the four-stage approach to such applications outlined in Assa Abloy New Zealand Ltd v Allegion (NZ) Ltd as follows:1
(a)Are the documents sought relevant and, if so, how important will they be?
(b)Are there grounds for belief that the documents sought exist?
(c)Is discovery proportionate?
(d)Weighing and balancing those matters, in the Court’s discretion applying r 8.19, is an order appropriate?
[16] Mr Rawlings’s diaries and the promissory note are highly relevant to the issues that arise in this proceeding. [REDACTED]. Mr Rawlings kept a daily diary for many years and it can be expected that he would make entries in respect to transfers [REDACTED] to Ms Sinnadurai. Ms Sinnadurai has disclosed copies of extracts from Mr Rawlings’s diaries but none for the 2019 year.
[17] Ms Sinnadurai relies upon the promissory note to explain the payments she received. The plaintiffs’ case is that it is not authentic. Ms Sinnadurai has provided only a copy of the promissory note in discovery. The plaintiffs require discovery of the original promissory note and also any native electronic versions of it in Ms Sinnadurai’s possession or control to determine its provenance.
[18] I am satisfied there is good reason to believe that the documents sought exist. Ms Sinnadurai has confirmed that Mr Rawlings gave her his diaries and copies were made of them, albeit she says she returned the diaries to Mr Rawlings. However, in an email of 10 July 2024 her former lawyer had advised that Ms Sinnadurai would make the diaries available for inspection, but she did not do so. Ms Sinnadurai advises that copies of the diaries may be held by her former lawyers, but she has not requested them.
1 Assa Abloy New Zealand Ltd v Allegion (NZ) Ltd [2015] NZHC 2760; [2018] NZAR 600 at [14].
[19] As far as the promissory note is concerned, Ms Sinnadurai confirms that an original of the document exists and may be with her former lawyers. She has also given different accounts as to how that promissory note came to be created and that Mr Rawlings used her computer at times. There are features of the promissory note document that the plaintiffs say support their position that it is not authentic, such as that its execution was purported to be witnessed by certain named persons who cannot be located.
[20] The discovery sought is proportionate. The documents sought are few in number and should be readily available to Ms Sinnadurai. As they are central to the substantive issues in the proceeding, I am satisfied the order sought should be made.
The inspection orders
[21]The plaintiffs seek orders allowing inspection of:
(a)the originals of the diaries that Ms Sinnadurai has discovered;
(b)the originals of several letters with handwritten signatures that she has discovered;
(c)the original promissory note; and
(d)Ms Sinnadurai’s electronic devices.
[22] I am satisfied there is reason to believe Ms Sinnadurai has had in her control originals of the diaries and the original promissory note. As far as the letters are concerned, the plaintiffs say the letters contain a handwritten signature indicating that original versions were scanned and provided by Ms Sinnadurai as part of discovery.
[23] The discovery order I will make will require Ms Sinnadurai to depose whether she has the originals of the diaries, promissory note and letters in her control, and to the extent that she does so they are to be delivered to the plaintiffs’ lawyers for inspection.
[24] The plaintiffs are also seeking inspection of Ms Sinnadurai’s electronic devices. This application relies on r 8.29 of the Rules, which provides:
8.29 Order facilitating inspection
(1)A Judge may, on application, make any order the Judge thinks appropriate to facilitate the efficient inspection of documents.
(2)An order under subclause (1) may, for example, require the person who is to produce the documents for inspection to do either or both of the following:
(a)arrange the documents in a stated manner or order:
(b)assist the party inspecting the documents to locate and identify particular documents or groups of documents.
[25] This rule (and also r 9.34) provides the Court with the power to make necessary orders to facilitate inspection of electronic devices to locate documents, although such orders will generally only be made where there is an evidential foundation upon which the Court is justified in concluding that discovery given by a party has not been adequate.2
[26] The plaintiffs referred me to several decisions, including Colville v Colville where the Court granted directions for inspection of electronic devices because it was uncertain whether the documents sought existed.3 To overcome this, the Court considered it appropriate to make directions which included that an expert be instructed to conduct keyword searches of the devices.
[27] As I have noted, there is reason to believe that Ms Sinnadurai has not provided adequate discovery. On the basis of her own evidence, she is not in a position to ensure that her discovery is complete. Notably, in her supplementary affidavit she says:
I am not an expert with computers and when I was asked by my solicitor to retrieve all emails earlier and I provided to him all the ones that I could find but subsequently sought help and a student was able to access my computer and find the additional correspondence described below.
2 Gillespie v Guest (No 1) [2013] NZHC 668 at [65]; and Patel v Indiago Ltd [2021] NZHC 3156 at [27].
3 Colville v Colville [2022] NZHC 766.
[28] In her affidavit and at the hearing Ms Sinnadurai raised no objection to the inspection of her electronic devices. She did say in her affidavit she would require inspection of the plaintiffs’ devices but has not made any such application. She also said that her former counsel, Mr Moss, had a technician undertake a search of her computer but she could not open the file containing the documents located. The plaintiffs’ counsel advised that Mr Moss had provided some further documents, but they were not in native format as requested, did not contain important documents that are the subject of this application and did not provide any report on what steps had been taken to search for documents.
[29] I consider that orders for an inspection to be undertaken of Ms Sinnadurai’s electronic devices are appropriate as:
(a)I am satisfied that Ms Sinnadurai has not provided full discovery;
(b)Ms Sinnadurai’s affidavit refers to electronic audio files that have not been discovered;
(c)Ms Sinnadurai does not appear to have the ability to make her own searches for documents/files on her electronic devices and will not be in a position to correct deficiencies in her discovery;
(d)the primary documents in issue (the diaries, promissory note and letters) have been provided as scanned copies, not in original form, and must have been stored on electronic devices;
(e)Ms Sinnadurai has confirmed that she had the original promissory note and gave it to her former lawyer, but has failed to produce the document itself;
(f)the diaries produced by Ms Sinnadurai have been altered, and it appears the alterations made can only be explained on the basis that they have been made electronically; and
(g)the authenticity of the diary entries, promissory note and letters will be a central issue at trial and the inspection sought will help determine that issue.
[30] The orders I make at the end of this judgment are not exactly as sought by the plaintiffs. I am concerned that Ms Sinnadurai should be inconvenienced as little as possible and that her electronic devices be inspected and promptly returned to her. I am also concerned that only documents directly relevant to the issues and which are not privileged are disclosed to protect Ms Sinnadurai’s privacy, while at the same time ensuring that full disclosure is provided.
Application for further particulars
[31] Rule 5.48 of the Rules requires a statement of defence to give a fair and substantial answer in response to allegations in a statement of claim. Specifically, rr 5.48(2) and (5) relevantly provide:
5.48 Requirements of statement of defence
...
(2) A denial of an allegation of fact in the statement of claim must not be evasive. Points must be answered in substance In all cases a fair
and substantial answer must be given.
...
(5) The statement of defence must give particulars of time, place, amounts, names of persons, nature and dates of instruments, and other circumstances sufficient to inform the court, the plaintiff, and any other parties of the defendant's defence.
[32] The plaintiffs sought further particulars of paragraphs 23, 24 and 27 of Ms Sinnadurai’s amended statement of defence. Some of the requests went beyond seeking particulars. However, I am satisfied that Ms Sinnadurai should provide some further particulars that are sought.
[33] In respect to paragraph 23 of her amended statement of defence, Ms Sinnadurai pleads that payments received from Mr Rawlings [REDACTED] were a gift pursuant to a promissory note. She does not plead why the balance of the payments
[REDACTED] were made. Ms Sinnadurai must plead whether all the payments were a gift or whether she provided value for those other payments, and if so, what it was.
[34] In respect to paragraph 24 of the amended statement of defence, Ms Sinnadurai says payments she received [REDACTED] were to rebuild a garage on her property because Mr Rawlings had caused a fire, the garage could not be repaired, and to avoid a police complaint. Ms Sinnadurai is to provide particulars of the date of the fire and the basis for the assessment that the garage could not be repaired.
[35] In respect to paragraph 27, Ms Sinnadurai has pleaded that she was not a trustee of the Kiwibank account from which payments were made to her. I understand her position may be that she was the owner of the account and the funds in it upon becoming a joint account holder. Ms Sinnadurai is to plead the nature of her interest in the funds held in the Kiwibank account prior to the payments to her being made from that account.
Result
[36] Ms Sinnadurai is to forthwith make requests of her former lawyers; Weston Ward & Lascelles; Patient & Williams; Anselm Williams; Eagles, Eagles & Redpath; Jai Moss; and Claudia Leighs to uplift from them any hardcopy or electronic documents that they are holding on her behalf relevant to the matters in issue in this proceeding. She is to search those files to identify any documents relevant to the matters in issue that have not already been disclosed to the plaintiffs.
[37] Ms Sinnadurai shall by 27 June 2025 file and serve upon the plaintiffs an affidavit identifying:
(a)her email addresses, laptops and computers, electronic storage devices, hard drives and/or pen drives that she used in respect to any dealings she had with or concerning Christopher George Rawlings since January 2017 to the present;
(b)if any such electronic devices are no longer in her control, her best knowledge and belief as to when they ceased to be in her control and what became of them;
(c)whether the 2019 diary of Christopher George Rawlings or any portion thereof (the 2019 diary) is, or has ever been, in her control;
(d)if the 2019 diary was, but is no longer, in her control, her best knowledge and belief as to when the 2019 diary ceased to be in her control and who now has control of it;
(e)whether or not she is, or ever has been, in control of native electronic versions of the promissory note; and
(f)any further documents that she is required to disclose following her search of files obtained from her former lawyers.
[38] To the extent that the 2019 diary is in her control, Ms Sinnadurai must make it available for inspection in accordance with the inspection order in [40] below.
[39] To the extent that native electronic versions of the promissory note are in her control, Ms Sinnadurai must make them available in accordance with the inspection order in [40] below.
[40]Ms Sinnadurai shall by 4 July 2025:
(a)Deliver the original 2019 diary, together with:
(i)Ms Sinnadurai’s discovery documents 7, 118, 157, 187, and 200 (the diaries);
(ii)Ms Sinnadurai’s discovery documents 158 and 235 (the signed letters); and
(iii)Ms Sinnadurai’s discovery document 119 (the promissory note);
to the offices of the plaintiffs’ lawyers and leave them there for inspection for one month, after which period they shall be returned to Ms Sinnadurai.
(b)Deliver her electronic devices that remain in her control along with any access credentials to any online email account (including the email address specified in paragraph [1(b)(ii)] of the application) and any document creation accounts to The Computer Doctor Ltd (123 Blenheim Road, Riccarton, Christchurch 8041) (the Forensic Expert).
(c)Provide to the Forensic Expert only any credentials, passwords, and access codes to enable access to accounts, systems, and repositories, including online accounts on the electronic devices.
[41] The Forensic Expert shall within 72 hours of receipt of the electronic devices and related credentials, passwords and access codes take a clone of each electronic device and return them to Ms Sinnadurai.
[42]The Forensic Expert may then conduct an examination of the cloned data by:
(a)searching for any documents using the following keyword search terms:
(i)“Promissory”
(ii)“[REDACTED]”
(iii)“31 January”
(iv)“gift”
(v)“[REDACTED]”
(vi)“[REDACTED]”
(vii)“Donor”
(viii)“Witness”
(ix)“Pavene”
(x)“Penelope”
(xi)“Joanna”
(xii)“Wancemont”;
(b)identifying any documents that resemble the scanned diaries that are existing on the electronic devices, for which purpose the scanned diary entries disclosed by Ms Sinnadurai on discovery may be provided by the plaintiffs’ lawyers to the Forensic Expert; and
(c)considering whether any documents/files are, or may have been, deleted from the electronic devices.
[43] The Forensic Expert must keep the data and all credentials, passwords and access codes provided by Ms Sinnadurai confidential and not disclose that information to any person (including the plaintiffs and their legal advisors), nor perform any analysis of the electronic devices or the data obtained other than in accordance with these orders.
[44] An independent third party lawyer agreed by the parties (or if no agreement is possible appointed by the Court) shall prepare an affidavit for the Forensic Expert:
(a)outlining the process applied in inspecting the electronic devices and key findings, including the identification of deletion of documents;
(b)identifying any other areas of concern that the Forensic Expert may have as to the extent of the devices the Forensic Expert has been able to review; and
(c)providing a list of documents matching the keyword searches but not including any emails or communications between Ms Sinnadurai and any of her previous lawyers: Weston Ward & Lascelles; Patient & Williams; Anselm Williams; Eagles, Eagles & Redpath; Jai Moss; and Claudia Leighs.
[45] The Forensic Expert shall by 25 July 2025 file the affidavit with the Court along with the electronic originals of the documents listed, for inspection by the Court and distribution of the affidavit and the documents to the parties as the Court deems appropriate.
[46] Ms Sinnadurai must preserve all relevant documents, communications and electronic devices until trial.
[47] In the first instance, the plaintiffs will bear all costs for the inspection of Ms Sinnadurai’s electronic devices and the preparation of the Forensic Expert’s affidavit (including the costs of the independent third party lawyer) and shall pay such costs forthwith upon invoice. Final liability for the costs of the inspection is to be determined in the proceeding.
[48] Leave is reserved to both parties to apply to this Court for any variations to the above orders should circumstances require that.
[49] Ms Sinnadurai shall by 27 June 2025 provide further and better particulars of her amended statement of defence dated 20 September 2024 as follows:
(a)with respect to paragraph 23, state:
(i)the basis on which the late Mr Rawlings made, and Ms Sinnadurai received, each of the transfers referred to in paragraph 23 of the statement of claim; and
(b)with respect to paragraph 24, state:
(i)on what day and time the fire occurred; and
(ii)particulars of who made the assessment the garage could not be repaired, including identification of any written damage assessments; and
(c)with respect to paragraph 27, state:
(i)the nature and extent of Ms Sinnadurai’s interest in the Kiwibank account;
(ii)the facts which gave rise to that interest; and
(iii)the date on which Ms Sinnadurai acquired that interest.
[50]Ms Sinnadurai’s counterclaim filed 20 September 2024 is discontinued.
[40] The plaintiffs have sought costs against Ms Sinnadurai but I note she has been granted legal aid for this proceeding, although at the present time she has no lawyer acting for her. In those circumstances I reserve leave to either party to make further submissions by memorandum if they wish to do so.
O G Paulsen Associate Judge
Solicitors:
Parry Field Lawyers, Christchurch
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