Sayes v Tamatekapua HC Auckland CIV 2009-404-005391
[2011] NZHC 359
•16 February 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2009-404-005391
BETWEEN MAURINE DOROTHY SAYES Plaintiff
ANDPRUDENCE JANE TAMATEKAPUA AND SAYES FAMILY TRUSTEE COMPANY LIMITED AS TRUSTEES OF THE SAYES FAMILY TRUST
First defendants
ANDMICHAEL WENTWORTH SAYES Second defendant
Hearing: 16 February 2011
Counsel: S R Jefferson for plaintiff
H M McKee for first defendants (abiding decision) M W Sayes in person
Judgment: 16 February 2011
ORAL JUDGMENT OF ASSOCIATE JUDGE ABBOTT
Solicitors:
Kate Langham Law, PO Box 77102, Auckland 1350 for plaintiff
Glaister Ennor, PO Box 63, Auckland 1140 for first defendants
M W Sayes by email [email protected]
SAYES V TAMATEKAPUA & ORS HC AK CIV 2009-404-005391 16 February 2011
[1] The plaintiff, Maurine Sayes, has applied for an order barring the second defendant, Michael Sayes, from taking any further steps in this proceeding unless he makes certain documents available for inspection, or delivers copies of them to the plaintiff.
[2] Although the application was filed on 22 November 2010, it has only come before the court today.
[3] Mr Sayes yesterday filed notice of opposition and an affidavit sworn by himself in support of that opposition. The essence of the opposition is that Mr Sayes believed that a lawyer formerly acting for him had previously told Mrs Sayes (through her lawyer) that all documents that could be located had been supplied, and that her lawyer is welcome to come and inspect other documents at his (Mr Sayes) home.
[4] There may have been some confusion on Mr Sayes’ part arising out of the form of the application. Mrs Sayes has asked for documents to be made available for inspection on the basis that there has been unreasonable delay and non- compliance with an order for discovery made on 7 October 2010. In his submissions today, Mr Jefferson acting for Mrs Sayes, has emphasised that non-compliance. He says that Mr Sayes was required to file an affidavit of documents in the manner prescribed by the High Court Rules, and has not done that. In part, I believe, this is a response to Mr Sayes’ affidavit in support of his notice of opposition, in which he says that many of the documents no longer exist.
[5] Whether or not there has been some confusion, the focus for the court at this point must be on resolving this issue. This proceeding is listed for a four day trial in the week commencing 11 April 2011. Discovery must be completed properly in sufficient time to allow the parties to prepare properly for that trial. The failure to complete discovery properly appears also to be affecting the prospects of any settlement negotiations.
Relevant background
[6] The present application, and particularly the request that the draconian step of debarring a defence be ordered, must be considered in the context of the proceeding to date and the order for discovery on which Mrs Sayes relies.
[7] The proceeding was commenced in September 2009. Initially there was a degree of skirmishing over the form of pleadings, but that was largely resolved by an amended statement of claim and an amended defence filed in May 2010. The current issue was possibly also delayed by the fact that initially discovery was undertaken informally, with leave reserved for either party to apply by memorandum for formal discovery orders. Counsel then acting were content to rely on the fact that a substantial amount of documentation had been disclosed in a related relationship property proceeding that was commenced in the Family Court.
[8] The need for further discovery surfaced in April 2010 at which time counsel then appearing for Mrs Sayes raised the fact that an application for discovery made in the relationship property proceeding had not been advanced. The documents then sought are essentially the documents that are still at issue in this application.
[9] A judicial settlement conference was arranged in this proceeding for June
2010 (before the discovery issues were resolved, and no doubt in the hope that there might be no need to pursue them). Unfortunately that conference did not proceed. The reasons for that need not be traversed at this point but to a great extent they lay in the hands of Mr Sayes. The settlement conference was rescheduled for October
2010, but again did not proceed. By that time discovery had become more of an issue. On 7 October 2010 Brewer J made an order that Mr Sayes make discovery of the following documents:
(i) The deed of trust forming the M W Sayes Family Trust; (ii) The deed of trust forming the Sayes Farm Trust;
(iii) All financial statements for the M W Sayes Family Trust; (iv) All financial statements for the Sayes Farm Trust;
(v) All trustee minutes for the M W Sayes Family Trust;
(vi) All trustee minutes for the Sayes Farm Trust; (vii) All bank statements for the Sayes Farm Trust;
(viii) All bank statements for foreign bank accounts in [Mr Sayes’s] name
since January 2005.
There is an issue over all of these documents save for those in sub paragraph (ii). [10] Brewer J also directed:
[7] I have explained to Mr Sayes that his obligations in respect of this order relate to any of these documents which are in his possession or power. The order for discovery is to be complied with by 7 November 2010.
[11] Mr Sayes did not comply with that order. On 22 November 2010 the plaintiff (Mrs Sayes) brought the present application, no doubt mindful of the looming trial date (notice of hearing had been sent to the parties on 16 March 2010).
Grounds for resisting the order
[12] The grounds advanced for opposing the making of the order (as stated in the notice of opposition) are:
(a) The second defendant understood that his former lawyer had informed the plaintiff that all documents requested had been supplied and any not supplied were unable to be located by the second defendant.
(b) The lawyer for the plaintiff has been invited by the second respondent [sic]
to call to his home and inspect the documents but has not been able to do so.
[13] In his affidavit in support Mr Sayes says that he had supplied all the requested documents (at undisclosed dates but approximately in mid 2010), upon the advice of counsel representing him at that time. He says that he did not appreciate that he was required to supply anything further. He says that the documents were supplied through his former counsel, and that he had advised the former counsel that there was no deed of trust for the M W Sayes Family Trust, that financial statements
and trustee minutes for the M W Sayes Family Trust had been disposed of, that there had been no activity in the Sayes Farms Trust since 2005 (it is common ground that financial statements for the period from 2000 to 2005 were supplied), and that he had been unable to find any trustee minutes for the Sayes Farm Trust. He does not refer in his affidavit to the other two categories of documents, namely bank statements for the Sayes Family Trust or bank statements for foreign bank accounts (since January
2005) in Mr Sayes name.
Discussion
[14] There has been no issue raised as to the potential relevance of the documents being sought.
[15] It is difficult to see how Mr Sayes could have interpreted the order made by Brewer J on 7 October 2010 other than as requiring him to comply with formal discovery requirements of the High Court Rules. I take into account that at least at this stage Mr Sayes is representing himself. Nevertheless, he has had extensive experience in litigation both in this case and in a related proceeding involving his siblings, in which he has displayed an ability to appreciate issues and understand much of the court’s procedure. I am also aware that he has had access to legal advice on a number of occasions, and even if he has chosen to dispense with that for this proceeding (at least for the present time) he still has the ability to obtain that advice and had so following the order of Brewer J. He has chosen not to read Brewer J’s directions literally, but rather to place his own construct on them.
[16] There are good reasons for providing discovery formally, particularly where there is a strong contest between parties on facts and credibility is in issue. The rules are designed to ensure that all relevant material is properly and fairly put before the court. Parties need to feel comfortable going into trial that they have had every reasonable opportunity to advance their case on all available facts.
[17] I have no reason to question Mr Sayes’ statements that some documents have
been disposed of or others can no longer be located. However, I think it is
reasonable for the plaintiff to require that these statements be made in a proper, formal context, as is required for the preparation of an affidavit of documents.
[18] Mr Sayes has said that he will have difficulty complying with any order within a short period of time. I am not persuaded that that is so. He has been aware of all of the issues in this case for a lengthy period of time. I have no doubt that he would be able to locate any documents that he felt would advance his case. If he has any doubts at all about what is required of him to comply with his obligations, he can obtain legal advice on that point relatively quickly, even if he chooses not to engage counsel for the trial of this proceeding at this time. I also take into account that it will be a relatively straight-forward matter to prepare an affidavit stating:
(a) Which of these documents existed but had been disposed of, and when that occurred and the reason for the disposal; and
(b)Whether other documents are known to have existed but can no longer be located, and what efforts have been made to locate them.
[19] There may be some greater effort needed to go through old papers (Mr Sayes that documents have been stored in a barn on his property), but I cannot accept that that is beyond Mr Sayes ability to do so within a day or two if he sets his mind to it.
Decision
[20] Weighing up the above, I am in no doubt that Mr Sayes is in breach of the order made on 7 October 2010. I consider that the plaintiff is entitled to an order that he comply within a relatively short period of time. If he does not do so, I consider that the plaintiff should be entitled to an order that he be debarred from further defending.
[21] I make an order on the plaintiff’s application of 22 November 2010 that the second defendant, Michael Sayes, be barred from taking any further steps in this proceeding unless he files and serves a formal affidavit of documents, complying
with all requirements of the High Court Rules, as ordered by this court on 7 October
2010, by 5:00pm on 4 March 2011.
[22] The plaintiff has been successful. The second defendant is to pay costs to the plaintiff on this application on a 2B basis, together with disbursements as fixed by the Registrar.
[23] The Registrar is to arrange a telephone conference at 9:00am on 7 March
2011 for the purpose of reviewing the status of this proceeding and, if it is to proceed, to give any directions that may be needed for trial. I reserve leave for any party to apply by memorandum for an earlier telephone conference if it is thought
that directions for trial are needed before then.
Associate Judge Abbott
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