IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV 2013-454-381 [2014] NZHC 726
BETWEEN
WARREN ROSS ROBERT, ZACH
ROBERT & GAVIN ALEXANDER WHITE AS TRUSTEES OF THE ROSS ROBERT FAMILY TRUST
Plaintiffs
AND
FOXTON EQUITIES LTD Defendant
Hearing:
6 March 2014
Counsel:
R T Wilson for Plaintiffs H L Quinlan for Defendant
Judgment:
9 April 2014
JUDGMENT OF THE HON JUSTICE KÓS (Discovery)
[1] An argument about discovery. The plaintiffs say that the defendant’s
discovery is deficient. They seek particular discovery of three further categories of
documents.1
In addition, they challenge the defendant’s claims to privilege
concerning 34 documents. The defendant has shifted its position in relation to the relevant categories of privilege applicable. But it still maintains that all 34 are privileged. The plaintiffs say I should inspect those documents to satisfy myself as
to the legitimacy of those claims.
Background
[2] The background is set out, helpfully, by Gendall J in an earlier judgment in a
1 Pursuant to r 8.19 of the High Court Rules.
related proceeding concerning a caveat lodged by the plaintiffs.2
relevant passages of that judgment in full:
I will set out the
[3] The respondent [defendant] owns a large block of commercial land in Foxton containing 7.3 hectares (the total site) of which the caveated land forms part. In 2008 the respondent tried to sell the total site as a whole, but after several unsuccessful attempts, decided to subdivide it. A draft plan was drawn up subdividing the total site into 15 lots. On 10 June 2010 the respondent and the applicants [plaintiffs] entered into an Agreement for Sale and Purchase (the ASP) of Lot 6, delineated on this draft plan (Lot 6) containing an area of approximately 3370 square metres including one substantial commercial building. The ASP provided for a price of
$145,000.00 for this Lot 6 with a deposit of $14,500.00 to be paid when the ASP became unconditional. Lot 6 formed part of and straddled the boundaries of the existing titles WN870/17 and WN13C/790 which represented the caveated land. Clause 15(b) provided that the ASP was conditional upon Horowhenua District Council (the Council) approval of the proposed subdivision plan on conditions acceptable in all respects to the vendor by the 30th day of June 2010 (which date was later extended to 30
October 2010). Clause 15(a) of the ASP provided that:
15.0(a) The vendor shall proceed with all due diligence and take all reasonable steps to have the attached proposed plan of subdivision approved by the Council and on receiving such approval shall in like manner prepare a title plan of subdivision, seek the Council’s approval of that title plan and have the title plan deposited in the Land Registry Office.
[3] I add here that cl 15(b) said:
15.0(b) This contract is conditional upon the Council approving the attached proposed plan of subdivision on conditions acceptable in all respects to the vendor by the 30th day of June 2010.
[4] I continue now from the judgment of Gendall…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Robert v Foxton Equities Ltd [2014] NZHC 726
Case
[2014] NZHC 726
Decision Date
CaseChat Overview and Summary
In Robert v Foxton Equities Ltd, the plaintiffs sought particular discovery of documents and challenged the defendant’s claim of privilege over certain documents. The court considered the application for particular discovery and the challenge to the defendant’s privilege claims. The court found that the plaintiffs were entitled to particular discovery of three categories of documents, including communications between the defendant and its agents concerning the purchase of another lot, communications concerning the defendant’s attempts to sell the whole or substantially the whole of the land, and communications concerning offers to purchase any of the proposed lots of the proposed subdivision. The court also found that the defendant’s claims of privilege over certain documents were valid, except for certain parts of two documents. The plaintiffs’ application for particular discovery was granted, and the challenge to the defendant’s privilege claim was dismissed, except for the two exceptions noted by the court. The plaintiffs were entitled to costs.