Sainsbury Logan & Williams v Bell

[2013] NZHC 38

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2009-091-197 [2013] NZHC 38

BETWEEN  SAINSBURY LOGAN & WILLIAMS Plaintiff

ANDROBERT ARTHUR BELL Defendant

Hearing:         30 January 2013 (Heard at Wellington)

Counsel:         B.R.D. Cuff - Counsel for Plaintiff

E.M.S. Cox and A.K. Sinclair - Counsel for Defendant

Judgment:      4 February 2013

JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL

Under r 11.5 of the High Court Rules I direct the Registrar to deliver this judgment at 3.15 pm on 4 February 2013.

Solicitors:           DLA Phillips Fox, Solicitors, PO Box 2791, Wellington 6140

Gibson Sheat, Lawyers, PO Box 2966, Wellington

SAINSBURY LOGAN & WILLIAMS V RA BELL HC WN CIV-2009-091-197 [4 February 2013]

[1]      Before the Court is an application by the plaintiff filed 27 August 2012 for an

“Unless Order” with respect to further and better discovery by the defendant.

[2]      This application was opposed by the defendant who filed an affidavit in this proceeding  on  25  January  2013  annexing  in  draft  a  detailed  second  amended affidavit of documents which he contended once sworn and filed would satisfy his discovery obligations in a broad sense, and obviate the need to consider the Unless Order application.

[3]      Although initially this was opposed by counsel for the plaintiff, it seemed to me under all the circumstances here that, particularly given the difficulty in making Unless Orders in cases where disputes have arisen over discovery, completion and filing of this second amended affidavit of documents would mean that the draconian step of making an Unless Order was unnecessary here.

[4]      That said, at the hearing of this matter before me on 30 January 2013 I made an order dismissing the plaintiff’s application for an Unless Order which I now confirm.

[5]      In addition, further orders were made at that hearing in the following terms which I now confirm:

(a)      The defendant is ordered to swear, file and serve his draft second amended affidavit of documents in this proceeding by 5.00 pm on 31

January 2013.

(b)Inspection of the defendant’s documents by the plaintiffs is to be completed by 5.00 pm on 14 February 2013.

(c)      Inspection by the defendant of the plaintiff’s documents is to take place in Wellington by 5.00 pm on 28 February 2013 (in this regard the plaintiffs are to make available to their Wellington counsel all their discovered documents for inspection by the defendant without delay).

(d)      As   an   aspect   of   the   plaintiffs’  inspection   of   the   defendant’s documents,  Mr  Cox  counsel  for  the  defendant,  has  issued  an invitation for the plaintiffs to inspect certain additional documents which the defendant has not discovered (on the basis that Mr Cox believes they are in any event not relevant here) but which for the sake of completeness Mr Cox holds and will make available for inspection.

(e)      Leave is reserved for any party by 5.00 pm on 28 March 2013 to file and serve any further application they may wish relating to discovery matters together with any supporting material. This is to include an application over any continued dispute between the parties over the discoverability test to be applied here.

[6]      Costs on the present application by the plaintiffs for the Unless Order for further and better discovery by the defendant are reserved. They are to be the subject of a separate decision issued shortly.

[7]      In the meantime and for the sake of clarification, I note now that the costs awarded to the plaintiff, Sainsbury Logan & Williams against the defendant, Mr Bell at paras [19] and [20] of my oral decision in this matter dated 12 November 2012 only represent costs on the aborted hearing of this matter on 12 November 2012 (being category 2B costs for the hearing calculated on the basis of one quarter of a day only).

[8]      Finally, counsel have raised with me an issue concerning questions of costs on the decision of His Honour Justice Clifford dated 8 June 2012 and recorded in a Minute of that date.  In that Minute His Honour Justice Clifford ordered the plaintiff Mr Bell to file and serve an affidavit by way of further and better discovery, and noted at para [16] that “the question of costs is reserved”.

[9]      If costs with respect to that application are still in issue between the parties

(and I understand that may be the case) then the following directions are to apply:

(a)      If the plaintiff seeks costs from the defendant with respect to that matter counsel for the plaintiff is to file and serve his memorandum on costs within 15 working days of today.

(b)Counsel  for the defendant  is  then to have a further period of 15 working days from that date to file and serve his memorandum on costs in reply.

(c)      Counsel for the plaintiffs is then to have a further period of 5 working days from that date to file and serve any brief costs memorandum strictly in reply that he may wish to.

(d)      The  Registrar  is  directed  then  to  refer  those  memoranda  to  His

Honour Justice Clifford for a decision to be made on the papers.

‘Associate Judge D.I. Gendall’