Spence v Lynch - [2013] NZHC 1081

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-7681 [2013] NZHC 1081

BETWEEN STUART GORDON SPENCE Plaintiff

ANDCHRISTOPHER MAURICE LYNCH Defendant

ANDAMANDA AMELIA WHITE First Third Party

ANDANNE LEOLINE EMILY FREEMAN Second Third Party

Hearing: 9 May 2013

Appearances: P Wright for Plaintiff and Defendant
A A White in person
A L E Freeman in person
D Broadmore for Non-Party (Bank of New Zealand) Judgment: 9 May 2013

Reasons: 14 May 2013

REASONSFOR JUDGMENT OF KATZ J [Application for non-party discovery]

Solicitors:
C Lucas, Lucas & Mabin, Auckland
L O’Gorman/D Broadmore, Buddle Findlay, Auckland

Copy to:
P Wright, Barrister, Auckland
A A White
A L E Freeman

SPENCE V LYNCH HC AK CIV-2011-404-7681 [9 May 2013]

Introduction

[1] The plaintiff, Stuart Spence, is the former de facto partner of the first third party, Amanda White. Following the breakdown of their relationship he sought to recover $224,480.48 which he claimed to have loaned to a trust associated with Ms White, the DCT Trust. The trustees were jointly and severally liable for any debt. Mr Spence therefore elected to only pursue the defendant, Christopher Lynch, who had been an independent professional trustee of the DCT Trust at the relevant time.

[2] Mr Lynch joined his (former) co-trustees, Amanda White and her mother Anne Freeman to the proceedings, as third parties. He subsequently settled Mr Spence’s claim against him for $150,000. He now seeks a contribution or indemnity from his (former) co-trustees. In addition, Mr Spence has assigned to Mr Lynch his debt claim of $224,480.48, which Mr Lynch now seeks to recover from Ms White and Ms Freeman in the alternative.

[3] Ms White and Ms Freeman have filed a counterclaim against Mr Lynch which includes claims of negligence and breaches of fiduciary duty. Significant damages are sought. The proceedings are set down for trial commencing 20 May
2013.

[4] On 28 March 2013 Ms White and Ms Freeman filed a non-party discovery application against the Bank of New Zealand (“Bank”). They seek discovery of various documents which they say are relevant to their defence and counterclaims. Given the imminence of the trial date (20 May 2013) I made the orders set out at [19] below at the conclusion of the hearing, with reasons to follow. My reasons are set out below.

The non-party discovery orders sought against the Bank

[5] The non-party discovery application sets out the orders sought in the following terms:

(a) The third parties respectfully request an order directing the Bank of New Zealand to disclose documents relating to the account operating authority signed by Mr Stuart Spence and the signatory of the DCT Trust, Ms Amanda White. Such authority which entitled Mr Spence to access to his personal accounts via being linked to the DCT Trust internet banking facility.

(b)The third parties respectfully request an order directing the Bank of New Zealand to disclose all bank statements of the DCT Trust for the period commencing when the aforementioned authority was first loaded for Mr Spence, around…

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 Spence v Lynch

Details

AGLC: Spence v Lynch [2013] NZHC 1081
Case: [2013] NZHC 1081
Decision Date: 14 May 2013

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Spence v Lynch involved a claim by the plaintiff, Stuart Spence, against the defendant, Christopher Lynch, for the recovery of a sum of $224,480.48 which Spence claimed was loaned to a trust associated with Amanda White, the former de facto partner of Spence. Lynch, who was an independent professional trustee of the DCT Trust, settled with Spence for $150,000 and sought to recover the remaining balance from the other trustees, Amanda White and Anne Freeman. The third parties, White and Freeman, filed a counterclaim against Lynch for negligence and breaches of fiduciary duty. The third parties also sought non-party discovery from the Bank of New Zealand, requesting documents related to account operating authorities and bank statements of the DCT Trust. The Bank opposed the application, arguing the documents were not clearly described and that the third parties had not agreed to pay the Bank's costs.

The court considered the scope of the discovery orders, noting that the third parties had not contested the Bank's evidence on the specific documents sought. The Bank had already provided White with a copy of the account operating authority for the DCT Trust. Regarding the request for documents specifying Spence's internet banking registration dates, the Bank required Spence's consent to disclose his personal information. Spence consented to the disclosure, and the court made an order for the Bank to provide the relevant documents. For the bank statements, the Bank informed the court that statements prior to April 2006 were no longer available, and those from April 2006 onwards could be accessed online by White at no cost. The third parties withdrew their application for these documents. The Bank also sought an order for the third parties to pay its costs in relation to the non-party discovery application and compliance with any orders made.

The court ruled that the Bank was to provide informal discovery of the documents relating to the account operating authorities and internet banking registration dates. The third parties were ordered to pay the Bank's scale costs on a 2B basis and the actual and reasonable costs of complying with the orders.

Orders