Splitz-Firewood Limited v Jacobsen

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-106

[2024] NZHC 1896

IN THE MATTER

of a breach of contract

BETWEEN

SPLITZ-FIREWOOD LIMITED

First Plaintiff

GARY MCIVOR
Second Plaintiff

AND

BRENT GRAEME JACOBSEN and WENDY LOU MCCUNE

Defendants

Hearing:

11 July 2024

Appearances:

C Bell and A Chrystall for Plaintiffs

A Butler KC and D Hardasa for Defendants (appearances not required)

Judgment:

11 July 2024

JUDGMENT OF ASSOCIATE JUDGE SKELTON

[1]                 This is an application by the second plaintiff, Gary McIvor, for a non-party discovery order against Slingshot Communications Ltd (Slingshot) pursuant to r 8.21 of the High Court Rules 2016.

[2]                 Mr McIvor seeks to obtain text messages, call logs and voice messages between 1 January 2021 and 29 June 2023 between his own mobile phone and the mobile phones of various other parties. Mr McIvor contends that the information is relevant to the issues in the proceedings and his own records of this information are materially incomplete.

SPLITZ-FIREWOOD LIMITED v JACOBSEN [2024] NZHC 1896 [11 July 2024]

[3]                 The amended application dated 15 March 2024 and Mr McIvor’s affidavit in support were served on Slingshot at its registered office on 19 March 2024. No opposition or appearance has been filed for Slingshot and the time for doing so has expired.

[4]                 The defendants have confirmed that they do not oppose the application. However, the defendants note that they do not accept all of the factual claims in the application and in Mr McIvor’s affidavit in support of the application and in the submissions on behalf of Mr McIvor in support of the application. Counsel for the defendants filed a memorandum dated 8 July 2024 confirming this position. In the circumstances I did not require the defendants to appear or be represented at the hearing.

Background

[5]                 The proceedings concern an alleged agreement between the plaintiffs and the defendants under which Mr McIvor and his company, the first plaintiff, Splitz-Firewood Ltd (SFL), would fell a number of trees on the defendants’ property.

[6]                 There is a dispute as to the existence of the contract, the terms of any contract, the performance of the services, and the nature and end of any contract.

[7]Broadly, the following issues arise in the proceedings:

(a)whether there was a contract between the parties for Mr McIvor or SFL to provide tree felling services on the defendants’ property and if so, what were the terms;

(b)to what extent did Mr McIvor or SFL provide tree felling services to the defendants; and/or breach any term of the alleged contract or a statutory guarantee;

(c)if there was a contract, were the defendants entitled to cancel, and did they cancel, the contract;

(d)to what extent have  the  defendants  retained  property  owned  by  Mr McIvor or SFL;

(e)to what extent has Mr McIvor or SFL suffered loss, and has such loss resulted from the defendants’ actions;

(f)is Mr McIvor or SFL entitled to any remedy, and if so, what…