Roskill Nominees Limited v Cunningham
[2021] NZHC 303
•26 February 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-001072
[2021] NZHC 303
BETWEEN ROSKILL NOMINEES LIMITED
Plaintiff
AND
BRUCE STEWART CUNNINGHAM
Defendant
CIV-2019-404-002553 BETWEEN
BRUCE STEWART CUNNINGHAM
PlaintiffAND
CLIVE ASHLEY JOHNSON
Defendant
ROSKILL NOMINEES LIMITED
Second Defendant
Hearing: 9 February 2021 Appearances:
G Bogiatto for the Plaintiff P Hoskins for the Defendant
Judgment:
26 February 2021
JUDGMENT OF ASSOCIATE JUDGE GARDINER
This judgment was delivered by me on 26 February 2021 at 4.30 p.m. pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date.......................................
Solicitors:
Corban Revell, Auckland G Bogiatto, Auckland
ROSKILL NOMINEES LTD v CUNNINGHAM [2021] NZHC 303 [26 February 2021]
Introduction
[1] In 2010 Mr Cunningham was facing financial difficulties and, potentially, a mortgagee sale of his home. He agreed that Roskill Nominees Limited (Roskill) would buy his property and hold it on trust for him for three months. He would then re-purchase it. Roskill and its owner, Clive Ashley Johnson (Mr Johnson) say that Mr Cunningham agreed to pay rental and reimburse Roskill for all costs and expenses it incurred in relation to the property. The property was not re-purchased by Mr Cunningham at the end of three months, with both parties blaming each other for this failure. Eventually, in 2018, Roskill sold the property to Mr Cunningham’s sons.
[2] Roskill brought proceedings against Mr Cunningham, claiming unpaid rental of $213,782 and expenses of $226,135.93. This is proceeding CIV-2019-404-1072 (the 1072 proceeding). Mr Cunningham issued proceedings against Roskill and Mr Johnson demanding that they account for their dealings with the property, and claiming losses arising out of their breach of fiduciary duties. This is proceeding CIV-2019-404-2553 (the 2553 proceeding). The proceedings are being case managed together.
[3] Mr Cunningham has filed an interlocutory application for further and better discovery in both the 1072 and 2553 proceedings. Mr Cunningham has two main complaints about the discovery given by Mr Johnson and Roskill. They are that Mr Johnson and Roskill have failed to give discovery of relevant documents; and that they have grouped too broadly privileged documents in their list of documents. A third, technical complaint, is that Mr Johnson and Roskill have not discovered in these proceedings documents they disclosed in an earlier proceeding, in breach of r 8.16(4) of the High Court Rules 2016.
Issues
[4]The issues for me to determine are:
(a)Is Mr Johnson/ Roskill’s discovery incomplete?
(b)Have Mr Johnson/Roskill grouped privileged documents too broadly?
(c)For either or both reasons, should Mr Johnson/Roskill be required to swear a further affidavit of documents?
Facts
[5] Roskill is an incorporated company. Mr Johnson, an accountant, is sole owner, and has largely been sole director, of the company since July 2010. Mr Johnson has also, at all material times, been a director and shareholder of Johnson Nominees (No
7) Ltd (Johnson).
[6] Mr Cunningham is a retired beneficiary, residing at a Te Atatu property (the Te Atatu Property). Until 24 August 2010, Mr Cunningham was the registered owner of the Te Atatu Property, subject to a mortgage to Bridging Finance Ltd (BFL) and two caveats.
[7] In 2010, BFL began to take steps to exercise its mortgagee remedies against the Te Atatu Property by way of sale, as Mr Cunningham was in default of his mortgage obligations.
[8] To forestall BFL’s exercise of its power of sale, Mr Cunningham entered into an undated agreement with Roskill around July 2010 (the Te Atatu Agreement). Roskill agreed to purchase the Te Atatu Property from Mr Cunningham for $650,000, and to lease it to Mr Cunningham and his two sons for $890 per week. The parties disagree as to whether payments of rent were to continue for more than three months. Mr Cunningham would also pay to Roskill any costs incurred by Roskill in relation to the Te Atatu Property, as well as a reasonable fee to reflect Roskill’s assistance in avoiding the BFL mortgagee sale. The Te Atatu Property would be held in trust by Roskill for Mr Cunningham and would be re-purchased by Mr Cunningham within three months.
[9] By separate agreement (the Cable Bay Agreement), dated 16 July 2010, Mr Cunningham, Roskill and Mr Johnson agreed that Mr Johnson would sell
Mr Cunningham a property in Cable Bay (the Cable Bay Property) for $237,500. Mr Cunningham paid a $162,500 deposit. Under the Cable Bay Agreement, the
$162,500 deposit payable by Roskill for the Te Atatu Property was regarded as paid. The parties disagree as to whether Mr Johnson and Roskill had represented to Mr Cunningham that Roskill was the registered proprietor of the Cable Bay Property. The sale of the Cable Bay property did not go ahead. The parties disagree as to why.
[10] On 28 August 2010, settlement under the Te Atatu Agreement concluded, and Mr Cunningham and his sons began their residential tenancies at the Te Atatu Property. They did not pay rent from 11 January 2011 to 18 November 2018. Roskill attempted to evict them. Mr Cunningham pleads that during this period, Mr Johnson and Roskill used the Te Atatu Property for their own financial benefit, entering into unauthorised loan agreements and making unauthorised payments. The parties disagree about the extent of the fiduciary duties Roskill owed to Mr Cunningham.
[11] In 2018 Mr Cunningham sought an interim injunction to prevent the mortgagee sale of the property (the 931 proceeding). This led to negotiations culminating in the parties entering into a deed in November 2018, by which Roskill sold the Te Atatu Property to Mr Cunningham’s sons for $650,000, subject to Roskill and Mr Cunningham reserving all rights against the other. The parties disagree as to whether Mr Cunningham consented to the sale.
[12] Roskill pleads that it has incurred $439,917.93 worth of expenses in relation to the Te Atatu Property (the Outstanding Expenses), $213,782 of which comprise unpaid rental. Roskill pleads that, despite demand, Mr Cunningham has neglected or refused to pay the Outstanding Expenses.
Legal Principles
[13] Under r 8.19 of the High Court Rules 2016, a Court may make an order for particular discovery after the proceeding has commenced, where:
…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…
[14] The starting point is that a document or class of documents will only be discoverable if relevant to the matters at issue before the Court. Only then can it be said that, in terms of the rule, they “should have been discovered”.1
[15] The Court usually follows a four-stage approach in considering applications under r 8.19.2 First, are the documents relevant to issues before the Court, and if so, how important will they be? Secondly, are there grounds for belief that the documents exist? This will often be a matter of inference. Thirdly, would the time and cost of discovery be proportionate to its potential value? Fourthly, weighing and balancing these matters, and in the Court’s discretion, is an order appropriate?
[16] This Court has previously observed that relevance is to be assessed according to the pleadings.3 In determining relevance, it is the case of the party seeking discovery that must be assumed to be true, not the party from whom discovery is sought. Further, the party seeking particular discovery has the onus of establishing that the party from whom discovery is sought is in control of document that should have been discovered under standard discovery.4
[17] In relation to privileged documents, r 8.16(2) provides that documents of the same nature may be described as a group or groups. However, per subcl (3), the description of documents for which privilege is claimed must be sufficient to inform the other parties of the basis on which each document is included in a group under subcl (2). As Master Williams QC observed in Attorney-General v Wang New Zealand Ltd:5
The overriding consideration is the ability of the opposite party or the Court to specify the document in any application for inspection or production. If the nature of the group of documents is such that identification for those purposes is possible by doing no more than describing the group, then the group rather than its constituents only needs to be described. Such might occur, for example, in a case involving the production of a number of identical documents where it would be sufficient to describe them in the list of documents and include the number without enumerating every one. Another
1 Robert v Foxton Equities Ltd [2014] NZHC 726, [2015] NZAR 1351 at [8](a).
Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd [2015] NZHC 2760, [2018] NZAR 600 at [14]; and McGechan on Procedure (online ed, Thomson Reuters) at [HR8.19.03].
3 Robert v Foxton Equities Ltd [2014] NZHC 726, [2015] NZAR 1351 at [8](b).
4 At [8](c).
5 Attorney-General v Wang New Zealand Ltd (1990) 2 PRNZ 245 (HC) at 251, as cited in Guttenbeil v Tower Insurance Ltd [2012] NZHC 2106 at [20].
example might be the production of a receipt book numbered sequentially where it would be a sufficient description to describe it as a receipt book containing receipt numbers sequentially a–b and issued between certain dates. But where the nature of the documents is such that identification for the purposes mentioned is not possible globally, then the proper course is for the documents to be enumerated separately.
[18] More recently, Justice Fitzgerald summarised, “if group listing of privileged documents is to be adopted, the listing needs to accurately inform the…parties of the nature of the individual documents in that group, the date range for them and the basis for privilege claimed.”6 In that case, she required the grouping “Communications between solicitor, counsel, clients and potential witnesses” to be recast, as those communications were clearly not of the same nature.
Analysis
Is Roskill’s and Mr Johnson’s discovery incomplete?
[19] In the 931 proceeding, Mr Johnson swore, on his own account and on behalf of Roskill, an affidavit of documents dated 24 July 2019. That affidavit listed 55 documents dated between 1 January 2010 and 10 April 2019. One document was a group of bank statements.
[20] In the current proceedings, Mr Johnson has sworn two affidavits of documents, again for Roskill and on his own account. In response to orders of Associate Judge Andrew, dated 21 November 2019 and 29 January 2020, that the parties provide standard discovery, Mr Johnson swore an affidavit dated 26 February 2020. This affidavit listed 36 documents dated between 11 September 2009 and February 2020. One document, the only document for which privileged was claimed, comprised a group of solicitor correspondences over ten years.
[21] On 29 March 2020 Mr Cunningham served a notice on Mr Johnson/Roskill requiring a more explicit affidavit of documents. On 24 April 2020 Associate Judge Andrew directed that Mr Johnson/Roskill respond to the notice. Mr Bogiatto for Mr Johnson/Roskill answered that notice by way of memorandum of counsel dated 29
6 AFI Management Pty Ltd v Lepionka & Company Investments Ltd [2017] NZHC 1176 at [101].
May 2020. In a further affidavit of documents sworn on 24 June 2020, Mr Johnson listed an additional 14 documents dated between 20 August 2010 and 1 November 2013. He annexed as an exhibit a copy of Mr Bogiatto’s memorandum in answer to Mr Cunningham’s notice.
[22] Mr Johnson deposed in these affidavits that he understood the obligations imposed by the discovery orders, he had diligently searched for all documents required to be discovered including reviewing the records and documents of Roskill, and that the affidavits were correct and carried out the obligations under the discovery orders.
[23] Mr Cunningham now applies for discovery of the documents set out in his notice of 29 March 2020. That is the notice that Mr Bogiatto responded to by way of a memorandum of counsel. Mr Johnson “adopted” that memorandum in his affidavit filed in support of his opposition to this application dated 5 August 2020.
[24] Against that background, Mr Cunningham has the onus of establishing that the lists of documents are incomplete. The documents which Mr Cunningham says must exist, and have not been listed, all relate to the period that Roskill owned the Te Atatu Property as trustee for Mr Cunningham. They concern dealings with the property that occurred over that ownership period, including payment of expenses charged to the property (including legal fees), loan agreements and mortgages. Mr Cunningham says that these documents are relevant to the affirmative defence he pleads in the 1072 proceeding and to his claim against Mr Johnson and Roskill (the 2553 proceeding). He says that these dealings were not authorised by him as beneficiary, that Mr Johnson/Roskill have benefitted from the trust themselves in breach of their fiduciary duties to him and that third parties have also benefitted. In the 2553 proceeding he demands a full account of the transactions and relief for the losses he says he has sustained because of Mr Johnson’s/Roskill’s breaches of trust, including depleted equity in the property.
[25] Mr Johnson/Roskill do not dispute that these documents are relevant to Mr Cunningham’s affirmative defence in the 1072 proceeding and to his 2553 proceeding. But they say that all documents that exist have been listed. Mr Bogiatto expressly confirmed at the hearing that Mr Johnson/Roskill do not object to the
relevance of this category of documents. Therefore, the question is whether there are grounds for believing that there are documents of this category that exist and have not been listed already by Mr Johnson/Roskill.
[26] At the hearing, I emphasised to Mr Hoskins that where Mr Cunningham has received a response to his request for better discovery (here, through the Memorandum of Counsel and further affidavit sworn by Mr Johnson) he needed to demonstrate grounds for believing that the response was inadequate and there remained relevant documents that had not been discovered. This necessarily involves working through each document or group of documents sought, the response received and the evidence to suggest that further documents must exist.
[27] In response, Mr Hoskins took me through Mr Cunningham’s affidavits dated 7 February 2019 and 12 November 2020 and the exhibits to those affidavits, which evidence the dealings with which he is concerned.
Mortgages
[28] The certificate of title for the Te Atatu Property (BC1 to the affidavit of 7 February 2019) records a number of interests, including a mortgage to Kiwibank on 24 August 2010, a caveat by Duncan McFarlane on 20 September 2010, a caveat by Millennium 1st Group Limited on 9 June 2011, a transfer of the Kiwibank mortgage to Mr Johnson on 15 December 2016 and then to Coastal Finance Limited on 10 March 2017, a caveat by Mr Bogiatto on 12 October 2017 and a discharge of Kiwibank mortgage on 14 November 2018 (when the property was transferred to Mr Cunningham’s sons).
[29] Mr Cunningham seeks, at paragraph 10.9(a) to (e) of his notice, full records relating to these transactions, including transfers of the Kiwibank mortgage to Mr Johnson and then to Coastal Finance, discharge of the Kiwibank mortgage, the Bogiatto mortgage agreement and discharge and the Millennium mortgage agreement.
[30] Mr Johnson/Roskill’s responses, contained in the Memorandum of Counsel and adopted by Mr Johnson, and addressed in part by Mr Johnson in his affidavit of 5 August 2020, are:
(a)Documents relating to the transfer of the Kiwibank mortgage to Mr Johnson appear as documents 35 and 46 in Roskill/Mr Johnson’s 2019 affidavit of documents.7 Mr Cunningham says there should be authority and instruction forms and base documents. I have reviewed that affidavit and document 35 is a loan agreement with Kiwibank dated 10 August 2010. Document 46 is a Property Law Act notice dated 22 March 2018 between Coastal Finance Ltd and Roskill. These documents do appear to relate to the transfer of the Kiwibank mortgage to Mr Johnson.
(b)Documents concerning the transfer of the Kiwibank mortgage to Coastal Finance Limited appear in Roskill/Mr Johnson’s 2020 affidavit at 13, 17, 31, 32, 33 and 35. Mr Cunningham in his affidavit spells out the documents he would expect to exist, including: correspondence between Mr Johnson and a Mark Frickleton including the proposal to refinance, correspondence with Kiwibank, correspondence with Coastal Finance, the agreement to transfer the mortgage, bank records showing the transfer of funds between the parties, being Mark Frickleton, Mr Johnson, Coastal Finance and Kiwibank. The documents referred to in the response are a caveat lodged by Millennium (13), a caveat by Mr Cunningham (17), a letter of demand from Simpson Grierson on behalf of Kiwibank (31), a Property Law Act notice from Kiwibank (32) and two authority and instruction for electronic transaction forms (33 and 35). Many, if not all, of these documents do not appear to relate to the transfer of the Kiwibank mortgage to Coastal Finance.
7 Affidavit of Documents of First and Second Respondents, dated 24 July 2019.
(c)There is no response from Mr Johnson/Roskill on 10(c), being documents relating to the discharge of the Kiwibank mortgage.
(d)Documents concerning the mortgage agreement with Mr Bogiatto are said to comprise solely the Letter of Engagement between Mr Bogiatto and Roskill, which contains a mortgage provision. The Letter of Engagement has been disclosed.
(e)The mortgage agreement with Millennium and discharge of mortgage are said to appear in Mr Cunningham’s list as BC2–5 and BC1.2.63–
64. I am unable to identify BC2-5. BC1.2.63 appears to be an order of this Court dated 8 July 2015 and 64 a letter from DB Hickson dated 20 July 2015. Again, these documents do not appear to relate to the Millennium mortgage.
Expenses
[31] At paragraphs 10.10(a) to (f) of his notice, Mr Cunningham seeks documents relating to payments made to third parties, including law firms, that he says were ‘charged’ against the property. Some property expenses appear to have been paid by a Langley Trust. These payments are recorded in exhibit BC1B to Mr Cunningham’s 7 February 2019 affidavit. Mr Cunningham wants documents pertaining to the arrangements between Mr Johnson/Roskill and the Langley Trust. He wants documents relating to the payments made to law firms.
[32] In response, Mr Johnson deposes that he discovered relevant invoices from solicitors to Roskill in his affidavit of documents of 24 June 2020. The Memorandum of Counsel notes that two further invoices from Kyriak Law to Roskill/Mr Johnson would be discovered.
[33] It is said in the Memorandum of Counsel that there are no documents recording the arrangements with Langley. However, Mr Johnson/Roskill provided a Deed of Security of Agreement entered between Mr Johnson and Gollam and Co Finance dated 26 November 2010.
[34] It is said in the Memorandum of Counsel that supporting documents for the expenses paid by Langley were disclosed in Mr Johnson/Roskill’s 2019 affidavit of documents as 40, 43, 45, 48, 50 to 54; and their 2020 affidavit of documents as CAJ14, 15, 18, 20, 21, 26, 29 and 34. These documents appear to be a schedule from Roskill (40), a Watercare invoice (43), invoices from Mr Bogiatto (45, and 51), an invoice from Kyriak Law (48), an invoice from Anthony Harper (50), invoices from Sharp Legal (53) and a rates assessment from Auckland Council (54).
[35] Mr Hoskins took me to exhibit BC1 to Mr Cunningham’s affidavit of 12 November 2020. The exhibit is an email from Mr Bogiatto to Mr Cunningham’s former lawyer dated 10 December 2013 attaching a breakdown of expenses allegedly incurred by Roskill in relation to the property, for which Roskill demanded payment as per the Te Atatu Agreement. The total payments incurred were $250,889 and they include bank fees, interest payments, legal expenses ($2,083), loan fees, rates, valuation fees, trustee fees, repayments to Bridging Finance and McFarlane, principal payment to Kiwibank and water rates. Those are of course the expenses claimed by Roskill in the 1072 proceeding. Mr Cunningham requests documents supporting these expenses at 10.17(a) of his notice. It is unclear whether these are the same payments recorded in BC1B or not. Mr Johnson’s/Roskill’s response is provided through the Memorandum of Counsel. Some further documents are disclosed, but it is said that there are no documents relating to interest payments to Gollams Finance, Langley Factors, loan fees or trustee fees. Mr Hoskins says this is not credible. Mr Cunningham in his 12 November 2020 affidavit poses that there must be some written records.
[36] Mr Cunningham also requires discovery of “Agreement 19762” referred to in a Roskill payment schedule that Mr Johnson has disclosed (CAJ.27) and the insurance agreements Roskill entered relating to the property. The Memorandum of Counsel refers to documents in Mr Johnson’s affidavits, but these are not insurance agreements.
Financial Statements
[37] Mr Cunningham demands discovery of full financial statements for Roskill for the eight-year ownership period. He says that Mr Johnson/Roskill have only
disclosed: financial statements dated 31 March 2013 and 31 October 2013 and an incomplete and unsigned statement of financial position for 31 July 2016. The response in the memorandum is to refer to documents 21, 22, 35 and 36 in Roskill’s 2019 list. Only one of these is a financial statement (36), 31 March 2013.
Conclusion
[38] I acknowledge the measures Mr Johnson has gone to discharge his discovery obligations and to respond to Mr Cunningham’s demand for more. That included the preparation of a detailed Memorandum of Counsel that endeavoured to respond to each item in the Mr Cunningham’s notice. This exercise would not have been assisted by the repetition and overlaps within that notice. I also acknowledge the further affidavit of documents Mr Johnson filed and served and his additional responses in the affidavit he swore in response to the present application.
[39] However, I have reached the conclusion that the response falls short of what is required to meet Associate Judge Andrew’s discovery orders and provide Mr Cunningham and the Court with the assurance that all documents that exist in the categories discussed above have indeed been disclosed. My reasons are these. First, the response is primarily given through a Memorandum of Counsel which Mr Johnson “adopts”. This was an understandable response to a notice by Mr Cunningham which has no status in terms of the High Court Rules. However, in the circumstances I do consider that Mr Cunningham is justified in requiring an affidavit from Mr Johnson rather than a memorandum of counsel.
[40] Second, the Memorandum of Counsel in places refers to documents which do not correspond to those requested. Again, I acknowledge that the notice itself was repetitive and in parts difficult to follow and this may have contributed to this result. However, it needs to be remedied so that Mr Cunningham and the Court have a clear and accurate answer on each of the points he has raised.
[41] Third, in certain areas the documents discovered do appear rather “light”. For example, documents supporting the expenses claimed by Roskill. It may be that with the passing of time certain records have been lost, but this again needs to be spelt out by Mr Johnson in an affidavit.
[42] Overall, I am of the view that the Memorandum of Counsel and Mr Johnson’s affidavit do not satisfactorily answer the questions posed by Mr Cunningham. This is in the context of an acknowledgement by Mr Johnson/Roskill that the categories of documents are indeed relevant to Mr Cunningham’s’ claim.
[43]An order for Mr Johnson to provide an appropriate affidavit follows.
Are privileged documents described too broadly?
[44] Mr Cunningham also complains about the way that Mr Johnson/Roskill have grouped all privileged document in their affidavits of documents. In Part 2 of their affidavits - documents in their control for which they claim privilege - they have identified “Original documents between Roskill Nominees Ltd and me and their legal advisers for which legal professional privilege and litigation privileges claim” and listed as one item CA.36 “correspondence from August 2010 to February 2010”. Mr Hoskins says that this grouping is too broad and breaches r 8.16(3) and the principles laid down by authorities such as Vanda and Wang.8 Mr Hoskins maintains that the affidavit is also defective because the grounds of privilege affecting each document are not stated.
[45] Mr Bogiatto for Mr Johnson/Roskill acknowledges that the privileged documents are grouped broadly but says that grouping of documents is permitted under r 8.1(2). He submits that in any case, this privileged correspondence is not relevant to the issues in the proceedings. He submits that the key issue is what were the terms of the original agreement between Mr Cunningham and Mr Johnson/Roskill in 2010. Individual letters between Mr Johnson/Roskill and their lawyers are not
8 Vanda Investments Ltd v Logan HC Dunedin CIV-2009-412-219, 27 November 2009; Attorney- General v Wang New Zealand Ltd (1990) 2 PRNZ 245 (HC).
relevant and nor would it be proportionate to require the individual listing of ten years of correspondence across three law firms.
[46] To that, Mr Hoskins submits that the correspondence is relevant to Mr Cunningham’s claim in 13.13 of his statement of claim that Mr Johnson caused Roskill to obtain and pay for legal services that were charged to the property when the services were for the benefit of Mr Johnson and/or Roskill and opposed to his interests.
Analysis and conclusion
[47] Mr Bogiatto’s submission is at odds with Mr Johnson’s/Roskill’s acceptance that documents relating to Roskill’s ‘dealings’ with the property over the ten-year ownership period are relevant to Mr Cunningham’s affirmative defence in the 1072 proceeding and the 2553 proceeding. If this correspondence relates to those dealings, it is relevant, albeit potentially privileged. The fact that the correspondence has been listed as relevant but privileged in the affidavits supports this conclusion.
[48] If privileged documents are grouped, it must be done in a way that allows the other party to become aware of the documents claimed to be privileged and to meaningfully consider a challenge to the claim of privilege. The correspondence with lawyers has been grouped too broadly to know what it relates to, let alone whether privilege is rightly claimed. The documents do need to be described with a greater level of specificity so that it is possible to discern what dealings or transactions it concerns.
[49] However, I do accept Mr Bogiatto’s submission that to require Mr Johnson/Roskill to identify individual letters would be disproportionate. The correspondence only needs to be described in such a way as to enable Mr Cunningham to ascertain what it relates to, and the basis for the privilege claimed. Grouping around a transaction or engagement and/or date range should achieve that result.
Breach of r 8.13
[50] Mr Hoskins alleges that Mr Bogiatto has not complied with his discovery obligations given the paucity of documents disclosed and the fact that he appears to have secured his fees by taking a mortgage over the property. As I have said earlier, Mr Johnson and Mr Bogiatto have made reasonable attempts to respond to Mr Cunningham’s demands. I have concluded that in some respects the discovery has fallen short of what is required, but there are no grounds for concluding that there has been a breach of the rules by Mr Bogiatto.
Result
[51] I order Clive Ashley Johnson and Roskill Nominees Limited to file and serve by 9 April 2021 an affidavit that:
(a)lists all documents that are or have been in their control per the following paragraphs of Mr Cunningham’s notice dated 29 March 2020, including documents already disclosed in the 1072 and 2553 proceedings and the 931 proceeding:
(i)documents identified at 10.9(a) to (e);
(ii)documents identified at 10.11(a) to (c);
(iii)documents identified at 10.16(a) to (b);
(iv)documents identified at 10.17(a) to (d);
(b)where documents in these categories were, but are no longer in their control, identifies when the documents ceased being in their control and who now has control of them;
(c)lists privileged correspondence with lawyers concerning dealings and transactions relating to the property over the ownership period in groups which enable Mr Cunningham and the Court to ascertain the
law firm involved, the date range, the subject of the engagement and the nature of the documents in the group;
(d)identifies which category of privilege relates to each group of privileged documents.
[52] I can see no reason why Roskill / Mr Johnson should not be liable to Mr Cunningham for his costs, on a 2B basis, associated with this application. If the parties cannot agree on quantum they may file submissions of no more than five pages:
(a)Mr Cunningham by 12 March 2021;
(b)Roskill / Mr Johnson by 26 March 2021.
[53]I further direct that:
(a)inspection is to be completed by 23 April 2021;
(b)a case management conference will be allocated for the first available date after 7 May 2021;
(c)counsel are to confer and file a joint memorandum (noting any differences) 3 working days before the conference addressing:
(i)proposals for dealing with any remaining interlocutory matters including potential consolidation of the 1072 and 2553 proceedings;
(ii)a proposed close of pleadings date;
(iii)an estimate of the length of time required for trial so a fixture can be allocated;
(iv)dates for exchange of briefs of evidence, chronologies and filing of a common bundle of documents for the hearing;
(v)any outstanding Schedule 5 matters that have not been addressed.
Associate Judge Gardiner
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