Roskruge v Ferguson
[2018] NZHC 1094
•18 May 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2016-404-001901
[2018] NZHC 1094
BETWEEN ALICE JANE ROSKRUGE
Plaintiff
AND
ALAN DOUGLAS FERGUSON
First Defendant
AND
ALAN DOUGLAS FERGUSON and JOHN
NORMAN BARRATT-BOYES as trustees of the Onoto Family Trust
Second Defendants
AND
ALAN DOUGLAS FERGUSON and NEUMEGEN & NEUMEGEN TRUSTEES
LIMITED as trustees of the Lennox Family Trust
Third Defendants
Continued over /…
Hearing: 9 March 2018 Appearances:
J McCartney QC for the Plaintiff / Applicant C F L Godinet for the First Defendant
D R I Gay for the Second Defendant
No appearance for the Third DefendantsJudgment:
18 May 2018
JUDGMENT OF ASSOCIATE JUDGE SARGISSON
ROSKRUGE v FERGUSON [2018] NZHC 1094 [18 May 2018]
This judgment was delivered by me on 18 May 2018 at 11.30 a.m. pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date.......................................
CIV-2017-404-001044 AND BETWEEN ALICE JANE ROSKRUGE
Applicant
AND ALAN DOUGLAS FERGUSON
First Respondent
ALAN DOUGLAS FERGUSON and JOHN NORMAN BARRATT-BOYES as
trustees of the Onoto Family Trust Second Respondents
ALAN DOUGLAS FERGUSON and NEUMEGEN & NEUMEGEN
TRUSTEES LIMITED as trustees of the Lennox Family Trust
Third Respondents
[1] On 9 March 2018 a hearing took place on the plaintiff’s “omnibus” discovery application for orders for further and better discovery and non-party discovery. On 16 March 2018 I issued consent orders dealing with most aspects of the application as agreed at the hearing. I also indicated I would deal separately with the issues that remained, and I do so in this brief judgment.
[2] The remaining issues concern some of the documents sought by way of further and better discovery against the second defendants. Those documents are:
Onoto Family Trust documents
(a)The Trust’s financial statements for the financial years ending 31 March 2002 through to 31 March 2007 (the financial statement for year ended 31 March 2008 has been provided);
(b)The Trust’s tax returns for years ending 31 March 2000 through to 31 March 2012, and the year ending 31 March 2016.
Applied Hearing Limited documents
(c)Financial statements for the years ending 31 March 2000 to
31 March 2009 (except 2001, 2003, and 2007, which have been provided).
(d)Tax returns for the years ending 31 March 1998 through to 31 March 2012 and the year ending 31 March 2016.
(e)Detailed ledger printouts for the years ending 31 March 1997 through to 31 March 1999; and the years ending 31 March 2012 and 31 March 2017.
[3] The second defendants objected to providing these documents. In their notice of opposition they argued the plaintiffs’ application was late; the documents sought were irrelevant to the issues in the proceeding; and that they no longer have possession of the documents. The second defendants moderated their opposition at the hearing. Indeed, counsel accepted on their behalf that all of the documents that are sought are in fact discoverable as being relevant to the issues that the Court will have to decide on the plaintiff’s causes of action. (The two causes of action against the second defendants are based on constructive trust grounds). But counsel stressed that the second defendants maintain their position that they do not have the documents, which cannot be found despite proper search. He submits that should be determinative. He points out that the second defendants say in their affidavits that they simply do not have anything further in their possession and control.
[4] In response, counsel for the plaintiff argues that the second defendants’ contentions are “nonsense”. She points out that there must have been tax returns, financial statements, and the like; and submits that there must be a proper explanation for why they are no longer available (if indeed that is the case). But, she argues, no adequate explanation has been given. She submits that:
(a)The second defendants’ affidavit evidence says in “very vague terms” only that they do not have further documents;
(b)It is implausible to suggest that banks, accountants, and IRD would not hold copies of any of the missing documents. If the suggestion is to be accepted as correct, then the second defendants need to set out fully what steps they have taken to make conscientious enquiries from such sources.
(c)The second defendants must provide further affidavit evidence for the purpose of demonstrating that a proper search has been undertaken, including details of the enquires made to show why the documents “are not coming to light”.
[5] Counsel for the plaintiff also rejects the submission of counsel for the second defendants that there is no pleading in the plaintiff’s claim that directly puts dispositions of the Trust’s property or advances secured against the Trust’s property in issue. However, as she submits, it is no longer in dispute that the documents that are sought are relevant to the matters in issue, and the court will have to address issues of valuation of trust property for the purpose of determining the plaintiff’s constructive trust claims and the relief that the plaintiff seeks. There is merit to her submission that it is obvious that:
(a)Dispositions that reduce the value of property alleged to be relationship property (or which change the status of the property) are in issue.
(b)When a plaintiff pleads, “I am entitled to 50% of the property”, documents which establish value will always be discoverable.
(c)Where, as here, there is a mortgage secured against a property, documentation showing any increase in the amount of the mortgage after the parties separate is quite clearly discoverable. The amount of the mortgage at the date of any sale of the property following separation would also be clearly discoverable.
[6] I accept therefore that what counsel for the plaintiff says about the discoverability of the further documents sought is correct. Indeed, counsel for the second defendants no longer argues otherwise. Any such documents are discoverable if they are the Trust’s documents or the Trust was entitled to them (as conceded here). If they cannot be found, then the second defendants are obliged to set out in their affidavit evidence what they have done to show they have diligently searched for the documents, specifying the particular steps they have taken, including the enquiries they have made of persons who would obviously have been in possession of them at some stage.
Result
[7]I make orders that:
(a)The second defendants are to make further and better discovery for the purpose of disclosing the documents that the plaintiff seeks (as set out in para [2] of this judgment).
(b)For that purpose they are to file and serve further affidavits generally in accordance with Form G 37, with the necessary amendments. The affidavits are to deal fully with the matters in para [5] of Form G 37 of the High Court Rules. They are to be filed and served within 10 working days of the date of this judgment.
[8] I reserve the issues of costs. If the parties cannot agree on costs, brief memoranda (not exceeding 2 pages) may be filed within a further 5 working days.
[9] Leave is reserved in the event that any remaining issues relating to the second defendants’ further and better discovery require the Court’s involvement. For that purpose a memorandum may be filed on 2 working days’ notice.
[10] To assist the parties I set out in the schedule to this judgment the text of Form G 37.
Associate Judge Sargisson
Form G 37 Affidavit of documents
I, [full name, place of residence, occupation], swear—
rr 8.15, 8.16
1 I am [state which party you are (or the capacity in which you make the affidavit) and your authority to make the affidavit].
2 I make this affidavit under an order for standard discovery under rule 8.7/under an order for tailored discovery under rule 8.10* on [date] (the discovery order).
*Select one.
3 [Specify the content of the discovery order in terms of paragraph (a), (b), or (c) of rule 8.12(2) and, if paragraph (c) applies, state the obligations imposed by
the order.]
4 I understand the obligations imposed by the discovery order.
5 In order to fulfil those obligations, I have diligently searched for all documents required to be discovered under the discovery order, and I have also taken the following particular steps: [specify steps taken, for example, inquiries made of named persons].
6 In the Schedule of this affidavit, I list the documents that I am required to discover. 7 In Part 1 of the Schedule, I list the documents that are in my control and for
which I claim neither privilege nor confidentiality.
8 Include this paragraph if it applies, otherwise omit.
In Part 2 of the Schedule, I list the documents that are in my control and for which I claim privilege and state in relation to each document the nature of the privilege that applies.
9 Include this paragraph if it applies, otherwise omit.
In Part 3 of the Schedule, I list the documents that are in my control and for which I claim confidentiality. I propose that inspection of these documents be restricted to [name persons] and that the following restrictions apply: [specify proposed restrictions on inspection].
10 Include this paragraph if it applies, otherwise omit.
In Part 4 of the Schedule, I list documents that are no longer in my control and state when, to the best of my knowledge and belief, each document ceased to be in my control and the persons who, to the best of my knowledge and belief, now have control of each document.
11 Include this paragraph if it applies, otherwise omit.
In Part 5 of the Schedule, I list other documents known to me that have never been in my control but that I know would be discoverable if I had control ofthem. 12 To the best of my knowledge and belief, this affidavit is correct in all respects and carries out my obligations under the discovery order.
Solicitors:
Rob Webber & Associates, Auckland Legal Vision, Auckland
J McCartney QC, Auckland C F L Godinet, Auckland
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