Roskill Nominees Limited v Cunningham - [2021] NZHC 303

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
Plaintiff

AND

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…

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.

Continue reading Roskill Nominees Limited v Cunningham

Details

AGLC: Roskill Nominees Limited v Cunningham [2021] NZHC 303
Case: [2021] NZHC 303
Decision Date: 26 February 2021

CaseChat Overview and Summary

This case involved proceedings between Roskill Nominees Limited, Bruce Stewart Cunningham, and Clive Ashley Johnson, primarily concerning the ownership and management of a property in Te Atatu. Cunningham had entered into an agreement with Roskill to temporarily transfer ownership of his property while he faced financial difficulties, with the intention of repurchasing it after three months. However, this did not occur, and the property was eventually sold to Cunningham's sons. Roskill sought payment of unpaid rental and expenses from Cunningham, while Cunningham issued proceedings against Roskill and Johnson demanding an account of their dealings with the property and claiming losses arising from their alleged breach of fiduciary duties.

Cunningham filed an interlocutory application for further and better discovery, claiming that Roskill and Johnson had failed to provide complete discovery of relevant documents and had grouped privileged documents too broadly. The court had to determine whether the discovery was incomplete, if privileged documents were grouped too broadly, and if Johnson and Roskill should be required to swear a further affidavit of documents.

The court found that the response to the discovery request was insufficient and did not provide Cunningham and the court with the assurance that all relevant documents had been disclosed. The court also found that the privileged documents were grouped too broadly, making it difficult for Cunningham to challenge the claim of privilege. The court ordered Johnson and Roskill to file and serve an affidavit listing all relevant documents, including documents already disclosed in previous proceedings, and to list privileged correspondence with lawyers concerning dealings and transactions relating to the property over the ownership period in groups that enabled 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. The court further directed that inspection be completed by a certain date and that a case management conference be allocated for the first available date after a specified date. The parties were also directed to confer and file a joint memorandum addressing proposals for dealing with any remaining interlocutory matters, a proposed close of pleadings date, an estimate of the length of time required for trial, dates for exchange of briefs of evidence, chronologies, and filing of a common bundle of documents for the hearing, and any outstanding Schedule 5 matters that had not been addressed.

Orders