Spence v Lynch

[2015] NZHC 609

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-7681 [2015] NZHC 609

BETWEEN

STUART GORDON SPENCE

Plaintiff

AND

CHRISTOPHER MAURICE LYNCH Defendant

AMANDA ADELE WHITE First Third Party/First Applicant

ANNE LEOLINE EMILY FREEMAN Second Third Party/Second Applicant BANK OF NEW ZEALAND

Non-Party/Respondent

Hearing:	On the papers
Counsel:	First and Second Applicants in person L A O’Gorman for Respondent
Judgment:	30 March 2015

JUDGMENT OF KATZ J [Application to rescind judgment]

This judgment was delivered by me on 30 March 2015 at 4:30 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:           Buddle Findlay, Auckland

SPENCE v LYNCH & ORS [2015] NZHC 609 [30 March 2015]

Introduction

[1]      On 28 March 2013 Amanda White and Anne Freeman applied for non-party discovery orders against the Bank of New Zealand (“Bank”).   Orders were made, as set out in my judgment of 9 May 2013.1   The Bank complied with those orders.  The proceedings were subsequently substantively determined by Priestley J in his judgment of 19 June 2013.2     Ms White and Ms Freeman now apply to have my interlocutory judgment of 9 May 2013 rescinded.

[2]      Rule 7.51 of the High Court Rules provides that a Judge may rescind any order that has been fraudulently or improperly obtained.  The onus of proving the improper or fraudulent conduct lies on the person making the allegation.3     The primary consideration for the Court in an application under r 7.51 is the overall justice of the case.  The fact that the order would not have been granted had the alleged impropriety not occurred is a relevant factor in the exercise of the discretion.4

The non-party discovery application

[3]      The  application  for  non-party discovery encompassed  three  categories  of documents:

(a)      documents relating to any Account Operating Authority signed by the plaintiff, Stuart Spence (“Request A”);

(b)any Account Operating Authority enabling Mr Spence to have internet access to the Spence Personal Accounts “linked to the DCT Trust” (“Request B”); and

(c)      all bank statements in relation to the DCT Trust Account from the date the Account Operating Authority enabling Mr Spence to have access to the DCT Trust Account was signed (allegedly late 2005) to the date

the Authority was cancelled (“Request C”).

1      White v Bank of New Zealand [2013] NZHC 1087.

2      Spence v Lynch 92013] NZHC 1478.

3      Ellinger v Guinness Mahon & Co [1939] 4 All ER 16, at 25.

4      Yang  v  Ko  &  Anor  HC Auckland  CIV-2005-404-4583, 31  July  2007,  at  [24];  Aerospace

Developments Ltd v Altitude Aerospace Interiors Ltd (No 2) [2013] NZHC 1337 at [6] and [46].

[4]         I made orders in relation to Request A by consent.  In relation to Request B, counsel for Mr Spence appeared at the hearing and advised that Mr Spence was willing to consent to the disclosure of the documents sought in that category.  The Bank accordingly withdrew its opposition to disclosure of such documents and I ordered that they be discovered.

[5]      Ms White and Ms Freeman elected, at the hearing, not to pursue Request C. This was primarily because of evidence provided by the Bank that:

(a)      any documents in that category that pre-dated April 2006 no longer existed, as the Bank does not keep records for longer than 7 years;

(b)documents that post dated April 2006 were available to Ms White via her online banking facility at no charge, or on request at a cost of $5 per statement if hard copies were required;

(c)       the Bank had already supplied bank statements for the DCT Trust

Account up to April 2009 to Ms White, at no charge; and

(d)the only further documents that could be provided were hard copies of bank statements from April 2009 onwards which could be obtained either through Ms White’s internet banking facility or by provision of hard copies at a cost of $5 per statement.

[6]      I found that the Bank had acted responsibly throughout.   It was therefore entitled to costs of the non-party discovery application on a 2B basis, as well as its reasonable costs of complying with the discovery orders. The applicants have not, to date, paid those costs.

[7]      The Bank appears to have promptly complied with the orders in relation to Requests A and B.  It also voluntarily provided a number of further bank statements requested by the applicants, at least some of which appear to fall within the category encompassed by Request C, at no cost to the applicants.

Should the non-party discovery orders be rescinded?

[8]      Ms White and Ms Freeman’s application to rescind my interlocutory orders of 9 May 2013 is misconceived.  Their key concern does not relate to the orders that were actually made (relating to Requests A and B).  Rather, their concern relates to an order that was not made (relating to Request C).   The applicants’ position appears to be that they only withdrew Request C due to false information provided by the Bank.    In  particular,  they  allege  that  it  was  incorrect  of  the  Bank  to  say  that statements relating to the DCT Trust Account could be obtained through internet banking.  The applicants’ evidence is that they could not access the relevant account through internet banking at the relevant time, as the account had been closed.

[9]      The  Bank’s  position  remains  that  a  non-party  discovery  order  was  not required for the applicants to obtain the DCT Trust statements dated after April 2006. They were always available to the applicants either online or in hard copy, at a cost of $5 per statement.  Further, the Bank says that it repeatedly advised the applicants of these options.  Despite the fact that the applicants failed to pay the required $5 per statement fee, the Bank nonetheless provided them with a number of bank statements free of charge.

[10]     There is therefore a conflict in the evidence as to whether the applicants were able to access online statements of the DCT Trust during the relevant period.  There does not appear to be any dispute, however, that the relevant statements were available to the applicants in hard copy, on payment of the Bank’s usual charges, or that the Bank did indeed provide the applicants with a number of statements at no charge.

[11]     Regardless of whether the relevant statements could be accessed online, there is simply no basis for rescinding the orders that were made in relation to Requests A and B.  Those were the only discovery orders made in my 9 May 2013 judgment. There is no evidence that those orders were fraudulently or improperly obtained in terms of r 7.51.  Indeed the applicants, who were the parties seeking the orders, do not suggest otherwise.  Nothing would be gained by rescinding those orders.

[12]     The  non-party discovery orders  which  the applicants  seek  to  rescind  are interlocutory orders in a proceeding that has now been substantively determined. They have already been complied with by the Bank.  There is no evidence they were obtained fraudulently or improperly.  There is no basis for rescinding those orders or the judgment generally.

Result

[13]     The rescission application is declined.

[14]     The Bank is entitled to costs on a 2B basis, together with disbursements as fixed by the Registrar.

Katz J