Taylor v Vernon

[2025] NZHC 1959

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-1350 [2025] NZHC 1959

UNDER

Part 18 of the High Court Rules 2016

IN THE MATTER

of declarations of constructive trust

BETWEEN

DIANNE FAYE TAYLOR

Plaintiff

AND

SCOTT FRANCIS VERNON

First defendant

SCOTT VERNON and HORIZON HURSTMERE TRUSTEE LIMITED

as trustees of the SCOTT FR TRUST Second defendants

Continued overleaf

Hearing:

On the papers

Counsel:

J McCartney KC and DJG Cox for plaintiff

V A Crawshaw KC, F C Monteiro, P E Baine and CJL Martin for first defendant

A S Ross KC, N R Frith and AFY Church for second to fifth defendants

P M Fee and M O Fee for third party

Date of judgment:

16 July 2025

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 16 July 2025 at 2.00pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

TAYLOR v VERNON [2025] NZHC 1959 [16 July 2025]

ANDSCOTT VERNON and HORIZON HURSTMERE TRUSTEE LIMITED

as trustees of the HORIZON HURSTMERE TRUST

Third defendants

AND  HORIZON THORNES TRUST LTD

as trustees of the HORIZON THORNES TRUST

Fourth defendant

ANDSCOTT VERNON and HORIZON HURSTMERE TRUSTEE LIMITED

as trustees of the HORIZON FAMILY TRUST

Fifth defendants

AND  SIMON MIDDLETON PALMER

Third party

[1]    In this proceeding Dianne Taylor seeks to  set  aside  her  4 April  2011 and  12 December 2016 agreements with Scott Vernon made under part 6 of the Property (Relationships) Act 1976.

[2]    For my present decision on the papers is Mr Vernon’s 3 June 2025 application for particular discovery from Ms Taylor, generally relating to the adequacy of tailored discovery provided from searches of her electronic data and email accounts.

Background

[3]    The relevant tailored discovery was of “[a]ll documents in solicitors’ files which contain advice in relation to the relationship property agreements … and any advice given in 2009” (category 61), “[t]he correspondence between the parties and their advisors held by [Ms] Taylor relating to the 2011 and 2016 agreements and the 2009 draft agreement” (category 67) and specified prior legal advice relating to such agreements, whether or not with Mr Vernon (category 81). I apprehend the advice is material predominantly to any claim the agreement(s) may be void,1 subject to

1      Property (Relationships) Act 1976, s 21F.

cancellation as procured by misrepresentation2 or possibly, if given effect, would cause serious injustice.3

[4]    Ms Taylor’s 12 December 2024 discovery affidavit explained she had “[u]ndertaken searches of [her] email accounts” and “[r]eviewed electronic files on [her] computer” to discover over 2000 open documents. She further explained:

In relation to categories 61 and 62, there are no documents in this category. No advice was given to me. My solicitors’ files in relation to the relationship property agreements with [Mr Vernon] dated 4 April 2011, 12 December 2016 and any advice given in 2009 are listed in full under category 67.

In relation to category 67, I provide my former solicitors’ files as they have been provided to me. I have provided the documents in my control to the extent I have been able to recover documents. My laptop was stolen in Spain in July 2015, and I lost all records from that computer. Since these proceedings commenced, I have taken all available steps to recover documents from a backup hard drive that held some of my records. I have provided the only further relevant documents that I have recovered. I waive privilege in relation to my former solicitor’s files listed in category 67. For the avoidance of doubt, I do not waive privilege in respect of any other documents.

In relation to category 81, to my knowledge there are no documents in this category. The proceedings between Mr Radisich and myself are not relevant to these proceedings and were settled by the consent orders discovered under category 63, and that document is confidential.

[5]    Mr Vernon complains Ms Taylor has not detailed the email accounts searched or the searches performed. He observes Ms Taylor’s discovery under category 67, other than of her former solicitors’ file, is of a single document. But standard discovery from her former solicitor discovered other emails from her to him relating to the agreements with Mr Vernon, to which he surmises she may continue to have access notwithstanding the loss of her laptop. Her present solicitors did not directly respond to the question if those other emails also were in her possession.

[6]    Ms Taylor responds Mr Vernon’s application is out of time in terms of the direction “[a]ny other interlocutory applications (i.e. those apart from discovery) are to be filed and served by 31 January 2025”,4 there is no basis to doubt the conclusivity of her discovery affidavits (which include a 1 July 2025 affidavit deposing to the steps

2      Contract and Commercial Law Act 2017, s 37.

3      Property (Relationships) Act, s 21J.

4      Taylor v Vernon HC Auckland CIV-2023-404-1350, 30 October 2024 (Minute of Andrew J) at [4(h)].

she took “to recover emails from an old harddrive and cloud account tied to a previously used email [account]”, said to illustrate her cloud account has no emails older than 2022) and Mr Vernon has the additional documents he identified, meaning any further order for particular discovery would be disproportionate.

Particular discovery

[7]    Tailored discovery “requires a party against whom it is ordered to disclose the documents that are or have been in [a] party’s control” as categorised.5 The parties were to endeavour to agree such categories and methods and strategies for a reasonable and proportionate search for documents, including by appropriate keyword searches or other automated searches and techniques for culling documents.6

[8]Orders for particular discovery then are available:7

[… if] at any stage of the proceeding it appears to a Judge, from evidence or from the nature or circumstances of the case or from any document filed in the proceeding, that there are grounds for believing that a party has not discovered

1 or more documents or a group of documents that should have been discovered.

The threshold is some evidence of the party’s control of relevant and material documents that should have been discovered in terms of the applicable discovery order, discovery of which then is proportionate to their potential value in the proceeding, for exercise of the Court’s discretion to order.8 No different approach arises in relationship property litigation.9

Discussion

[9]    Mr Vernon requires leave to pursue his application, being for other than any disputed categories of discovery addressed by Andrew J’s 30 October 2024 minute. Given the position to which this application now has come, for my decision on the papers, I will grant leave.

5      High Court Rules 2016, r 8.10.

6      Schedule 9, cl 3(2).

7      Rule 8.19.

8      Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd [2015] NZHC 2760 at [14].

9      Biggs v Biggs [2018] NZCA 546, [2018] NZFLR 854 at [30], [31] and [34].

[10]   I have no grounds for believing Ms Taylor has not discovered documents that should have been discovered by her. Mr Vernon’s focus is on the contended lack of specificity as to her search, rather than on any prospective substance it may have. I will not reverse engineer what should have been the parties’ agreement as to methods and strategies for discovery to address now what appears a lacuna in the parties’ agreement then. Although Mr Vernon identifies emailed documents in Ms Taylor’s former solicitor’s possession derived from her, he also has her 13 June 2025 “advice … that the absence of earlier emails is because [her] earlier laptops would have been set up as POP accounts, which clears the emails from the server”. Mr Vernon’s expert accepted a distinction between IMAP and POP protocols, only the former “keep[ing] the emails on a web-based server”.

[11]   I am not told of the content of the emailed documents in the former solicitor’s possession, so as to be able to assess if Ms Taylor may not have discovered documents she should have discovered. Given the former solicitor’s discovery of the documents, it would be disproportionate also to require Ms Taylor’s discovery of them, even if in her possession. Only if the former solicitor’s discovery indicated there may be other documents in her control for discovery might I consider exercising my discretion in Mr Vernon’s favour. The fact the former solicitor has emails from Ms Taylor is insufficient.

Result

[12]   Mr Vernon has leave to bring his 3 June 2025 application for particular discovery, which is declined.

Costs

[13]   In my preliminary view, as the unsuccessful party—in this proceeding of average complexity, in which a normal amount of time is considered reasonable for each step—Mr Vernon should pay Ms Taylor 2B costs and disbursements on the application for particular discovery.

[14]   If either party disagrees, and they cannot otherwise agree, costs are reserved for determination on short memoranda each of no more than five pages—annexing a

single-page table setting out any contended allowable steps, time allocation and daily recovery rate—to be filed and served by Ms Taylor within 10 working days of the date of this judgment, with any response or reply to be filed within five working day intervals after service.

—Jagose J

Counsel/Solicitors:

J McCartney KC, Auckland V ACrawshaw KC, Auckland A S Ross KC, Auckland

Rennie Cox, Auckland Wilson Harle, Auckland

MinterEllisonRuddWatts, Auckland Fee Langstone, Auckland