Tuuta v Kamo
[2019] NZHC 3026
•20 November 2019
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2018-485-927
[2019] NZHC 3026
UNDER Section 51 of the Trustee Act 1956 and the Court’s inherent jurisdiction BETWEEN
STEPHEN GEORGE TUUTA
Plaintiff
AND
JOHN KAMO and OTHERS
First to ninth defendants
Hearing: 24 October 2019 Appearances:
Z T Mora for plaintiff
J V Ormsby and T J McGuigan for defendants
Judgment:
20 November 2019
JUDGMENT OF ASSOCIATE JUDGE JOHNSTON
TABLE OF CONTENTS
Introduction [1]
The defendants’ application for an order for security as to costs [7]
The threshold test [11]
The discretionary factors [29]
The plaintiff’s application in relation to discovery [31]
Orders [56]
TUUTA v KAMO [2019] NZHC 3026 [20 November 2019]
Introduction
[1] In this proceeding the plaintiff, Mr Stephen Tuuta, sues nine defendants. The defendants are Ngāti Mutunga o Wharekauri Iwi Trust Inc (the eighth defendant), a charitable trust incorporated under the Charitable Trusts Act 1957, and six current (the first to fifth and ninth defendants) and two former (the sixth and seventh defendants) trustees.
[2] The plaintiff’s statement of claim is a substantial document. It runs to 33 pages. In it the plaintiff makes a series of allegations against the board of trustees, and the individuals cited, of breach of trust. A core allegation relates to a resolution passed on 14 February 2017 in which the board sought to confirm the position of the then chairperson. The plaintiff says that this resolution was unlawful and ineffective because the chairperson did not meet residency qualifications contained in the deed of trust. This is the foundation of further allegations as to the subsequent actions of the board. But there are also allegations of independent breaches.
[3] In the end, all of these allegations are directed at demonstrating that the board of trustees has been and remains dysfunctional.
[4] The plaintiff pleads three causes of action. The first seeks declaratory relief pursuant to the Court’s inherent jurisdiction as to the lawfulness or otherwise of the board of trustees’ actions, while the second and third seek, alternatively under s 51 of the Trustee Act 1956 and the Court’s inherent jurisdiction, an order removing the current trustees and appointing an independent trustee.
[5]There are two interlocutory applications before the Court:
(a)An application dated 1 August 2019 by the defendants pursuant to r 5.45 of the High Court Rules 2016 for an order for security for costs;
(b)An application dated 25 September 2019 by the plaintiff pursuant to r 8.25 of the High Court Rules for an order setting aside claims to privilege and confidentiality by the defendants in relation to their discovery.
[6]Both applications are opposed.
The defendants’ application for an order for security as to costs
[7]Rule 5.45 of the High Court Rules provides:
(1)Subclause (2) applies if a Judge is satisfied, on the application of a defendant,—
(a)that a plaintiff—
(i)is resident out of New Zealand; or
(ii)is a corporation incorporated outside New Zealand; or
(iii)is a subsidiary (within the meaning of section 5 of the Companies Act 1993) of a corporation incorporated outside New Zealand; or
(b)that there is reason to believe that a plaintiff will be unable to pay the costs of the defendant if the plaintiff is unsuccessful in the plaintiff’s proceeding.
(2)A Judge may, if the Judge thinks it is just in all the circumstances, order the giving of security for costs.
(3)An order under subclause (2)—
(a)requires the plaintiff or plaintiffs against whom the order is made to give security for costs as directed for a sum that the Judge considers sufficient—
(i)by paying that sum into court; or
(ii)by giving, to the satisfaction of the Judge or the Registrar, security for that sum; and
(b)may stay the proceeding until the sum is paid or the security given.
(4)A Judge may treat a plaintiff as being resident out of New Zealand even though the plaintiff is temporarily resident in New Zealand.
(5)A Judge may make an order under subclause (2) even if the defendant has taken a step in the proceeding before applying for security.
(6)References in this rule to a plaintiff and defendant are references to the person (however described on the record) who, because of a document filed in the proceeding (for example, a counterclaim), is in the position of plaintiff or defendant.
[8]Self-evidently there are three key questions:
(a)Is the threshold test in r 5.45(1) satisfied?
(b)If so, should the Court exercise the discretion under r 5.45(2) to make an order for security as to costs?
(c)If so, what should that order be?
[9]The leading case is McLachlan v MEL Network Ltd.1
[10] In that case, the Court of Appeal confirmed that where the threshold is met the questions of whether an order should be made and if so the terms of that order are quintessentially matters for the Court’s discretion, which must be exercised having regard to all relevant considerations and the justice of the case. The Court warned against treating previous cases as determining a fixed set of criteria to be taken into account, whilst at the same time acknowledging that previous decisions may inform the Court as to important areas of enquiry in any given case.
The threshold test
[11]In this case, the defendants rely on r 5.45(1)(b).
[12] They say that there is reason to think that if the plaintiff were to be unsuccessful in his claim, and a costs order were to be made against him in the defendants’ favour, he would be unable to meet the same.
[13] It is important, at the outset, to consider the likely level of costs in this case. In the course of their submissions, both Mr Cullen and Mr Ormsby spoke to this. Speculation — it could hardly be anything else at this stage — as to the likely length of a hearing ranged from three to ten days. My own sense is that, properly managed, and bearing in mind that much of the background is not in dispute and could very well be the subject of an agreed statement of facts, and that the plaintiff’s primary allegation relating to the 14 February 2017 resolution is not contested, this case may only take three, and should certainly not take more than five, days. Assuming that five days will
1 McLachlan v MEL Network Ltd (2002) 16 PRNZ 747 (CA).
be necessary, my assessment is that any costs award on a 2B basis would likely be in the order of $60,000. That calculation is based on the costs that would be claimable for a five-day witness hearing with two counsel together with a 25 per cent uplift on those to cater for the interlocutory stages of the proceeding.
[14] On that basis, the key threshold question is whether there is reason to think that the plaintiff would not be in a position to pay a cost order of that amount.
[15] In Highgate on Broadway Ltd v Devine, this Court said that what is required to satisfy the threshold test in r 5.45(1)(b) is credible evidence from which it may reasonably be inferred that the plaintiff will be unable to meet a costs award.2
[16]The Court has very little information before it.
[17] The defendants have not offered any direct evidence as to the plaintiff’s financial means.
[18] For his part, the plaintiff has not offered a comprehensive picture of his financial position. In his affidavit in opposition to this application, he has said:
(a)he makes his living operating a design and decorating business;
(b)his wife is employed;
(c)he and his wife own their family home, which he says has a market value of at least $460,000 and in respect of which they are jointly responsible for a loan secured by first ranking mortgage of approximately $146,000;
(d)he and his wife own an Australian investment property with an approximate market value of AUD 410,000 in respect of which they are jointly responsible for a loan secured by first ranking mortgage over the property in the sum of approximately AUD 308,000;
2 Highgate on Broadway Ltd v Devine [2012] NZHC 2288, [2013] NZAR 1017 at [7].
(e)from their investment property the plaintiff and his wife receive rental income of AUD 390 per week.
[19] On the strength of that evidence Mr Cullen submitted that the Court should conclude that the plaintiff has three sources of income and equity of approximately
$422,000 ($314,000 in the family home; and an equivalent of $108,000 in the investment property).
[20]On behalf of the defendants, Mr Ormsby submitted:
(a)As the plaintiff has not provided any details relating to his business, the Court would not be justified in concluding that it is necessarily profitable.
(b)The plaintiff’s wife’s income is irrelevant.
(c)Accordingly, the only income that the plaintiff’s evidence establishes is the income from the Australian investment property of AUD 390 per week and that is something to which the plaintiff has only a 50 per cent entitlement.
(d)The plaintiff’s wife has a 50 per cent entitlement in respect of the equity in both the family home and the investment property.
(e)In any event, the investment property must be disregarded because it is outside the jurisdiction.
(f)As the plaintiff has not offered any evidence as to debt (other than mortgage debt), which may have to be set against the equity in the two properties, the Court cannot assume that the couple’s equity in their properties reflects a net position.
(g)The fact that the plaintiff is saying that paying security at this stage would present him with some difficulties reinforces the need for such an order.
[21] On those bases, Mr Ormsby submitted the Court is entitled to conclude that there is evidence going to support the defendants’ submission that the plaintiff would not be in a position to meet a costs award.
[22] This case sits on the cusp in relation to whether or not there is credible evidence that the plaintiff may not be able to meet a costs award.
[23] I put to one side the fact there are nine defendants. All defendants have a common interest in this proceeding. They are all represented by the same solicitors and counsel. There would only ever be one costs award.
[24] I accept that a plaintiff faced with an application for an order for security for costs is not necessarily obliged to put a comprehensive statement of his financial position before the Court in opposing such an application. However, even in a case in which the defendant offers no direct evidence, a plaintiff may well wish to put at least sufficient information in his, her or its affidavit evidence in opposition to enable the Court to be satisfied as to ability to meet a costs award of the magnitude that might reasonably be expected to follow an adverse decision.
[25] Whilst it is true that neither the plaintiff’s income nor his wife’s income are particularised, on the evidence I think the Court is entitled to infer that the plaintiff and his wife, between them, and bearing in mind their investment income, earn sufficient for their ongoing needs so that their capital is not being eroded. I do not accept that the Australian property should be excluded from being brought to account. All that its location will mean is that enforcement will be a little more difficult. It is true that the plaintiff can only lay claim to half of the equity in the properties. However, the position is that a half interest in the equity in the properties would appear to have a value of approximately $211,000. If the plaintiff were to be unsuccessful in this proceeding and the defendants were to secure a costs award at the level earlier indicated, and if the plaintiff were not to pay the award, bankruptcy proceedings would almost certainly follow. This would lead to either or both of the properties being sold, which would release sufficient equity to meet a costs order of the magnitude earlier discussed, even if only half of the equity were available to the defendants. The plaintiff’s evidence that paying a substantial amount of security at this time would
present him with difficulties I see as more of a cash flow issue that an issue going to his ultimate ability to meet any order against him.
[26] In relation to this issue, I bear in mind that the purpose of r 5.45 is not to place the defendant in a better position than the average litigant but rather to protect defendants in cases in which a plaintiff is genuinely impecunious so that the defendant is at a materially greater risk than he, she or it should reasonably be expected to assume.
[27] In the end, despite the plaintiff’s failure to provide more information in relation to his financial position, I am not satisfied that there is credible evidence that the plaintiff would not be able to meet a costs award of the magnitude of $60,000.
[28] The conclusion I have reached in relation to the threshold question makes it unnecessary for me to go on to analyse factors relevant to the exercise of a discretion.
The discretionary factors
[29] However, for the sake of completeness, and in case the defendants’ application for security for costs should not rest here, I make the following comments:
(a)A relevant consideration is that the plaintiff is seeking to enforce compliance by the trustees of a charitable trust with the terms of the trust instrument. He is not seeking damages or any other form of direct benefit. Traditionally, the courts have tended to view favourably persons seeking to enforce compliance by the trustees of purpose trusts (especially charitable trusts). This is because, as a rule, purpose trusts do not have identifiable beneficiaries. Accordingly, in the absence of persons prepared to take an interest in ensuring that the purposes of the trust are fulfilled, they may not be. It appears to me that in the exercise of a discretion of the sort that r 5.45 calls upon the Court to make, that is a factor that should weigh against an order impeding a plaintiff in such proceedings.
(b)A key factor in the exercise of the court’s discretion under r 5.45 is the impression the court gains as to the merits of the claim itself. All the cases emphasise that at this stage a court is not in a position to reach any concluded views. All it can do is gain a general impression. The clear impression I have in this case is that the plaintiff is unlikely to secure the remedy he seeks. The plaintiff seems likely to be able to make out the allegation that the resolution passed by the trustees on 14 February 2017 was not lawful and that as a result the Board of Trustees was not properly constituted for a period of time from 14 February 2017 to 29 September 2017. Indeed, the defendants admit as much.
This, however, will not take the plaintiff very far. The real questions are, what is the plaintiff seeking to achieve in this litigation and what are the realistic prospects of his achieving this. As already said, the plaintiff seeks an order for the removal of the current trustees and their replacement by an independent trustee. I have real reservations as to whether there is any realistic prospect of any such orders being made.
My sense is that the Court is likely to acknowledge that the resolution of 14 February 2017 was ineffective, that, consequently, for a period of seven and a half months the trustees acted without authority, that when the error was drawn to their attention their immediate denial was a collective misjudgement and that in responding to the situation in the way they did they laid themselves open to criticism. However, it appears to me that the Court is also likely to conclude that the original error was unintentional, occurred nearly three years ago, reflects the actions of a differently configured group of trustees, that there is no clear evidence of any impropriety and that no obvious consequential loss has accrued to the trust fund or any of the beneficiaries whose interests are the subject of the trust’s purposes.
Against that background, my preliminary view is that the Court is very unlikely to respond with a wholesale order as sought by the plaintiff
removing the current trustees and appointing an unelected trustee, however independent the individual or corporation might be. Such an order would, it appears to me, now serve no useful purpose. In that sense, my impression is that the plaintiff’s case is weak. This is a factor that would count against the plaintiff in the exercise of the Court’s discretion under the rule.
(c)Another important factor is whether the imposition of an order requiring a plaintiff to pay security for costs is likely to deprive the plaintiff of his, her or its right to bring the claim before the Court. The plaintiff’s evidence is not so much to the effect that he would be unable to meet an order for security for costs. His position is more that providing security for costs would cause him a degree of financial discomfort and he would potentially elect not to pursue this claim if required to pay security. This factor is probably relatively evenly balanced.
(d)A related factor, which is the subject of discussion in a number of cases, is whether any impecuniosity on the part of the plaintiff (or other party against whom an order for security for costs is sought) has been brought about by the actions of the party seeking that order. There is no question of that in this case. This too is therefore a neutral consideration.
[30] Returning to McLachlan v MEL Network Ltd, and bearing in mind the Court of Appeal’s emphasis in that case on the overall exercise of a discretion in the interests of justice, the view I have come to is that, even if I had been satisfied on the threshold consideration, I would have not have made an order for security for costs, or at least not an order of the magnitude sought by the defendants.
The plaintiff’s application in relation to discovery
[31]Rule 8.25 of the High Court Rules provides:
8.25 Challenge to privilege or confidentiality claim
(1)If a party challenges a claim to privilege or confidentiality made in an affidavit of documents, the party may apply to the court for an order setting aside or modifying the claim.
(2)In considering the application, a Judge may require the document under review to be produced to the Judge and may inspect it for the purpose of deciding the validity of the claim.
(3)The Judge may—
(a)set aside the claim to privilege or confidentiality; or
(b)modify the claim to privilege or confidentiality; or
(c)dismiss the application; or
(d)make any other order with respect to the document under review that the Judge thinks just.
[32] Both parties have provided standard discovery pursuant to r 8.7 of the High Court Rules, and inspection pursuant to the listing and exchange protocol contained in pt 2 of sch 9.
[33] The plaintiff challenges the defendants’ claims to solicitor-client privilege and their claim to confidentiality. The defendants’ claims to litigation privilege are not challenged.
[34] Dealing first with the challenge to the claim to privilege, it is well established that in the context of litigation between trustees and beneficiaries of orthodox private trusts, the former cannot claim privilege in respect of relevant documentation held by him, her or it in his, her or its capacity as trustee. Essentially, this is because, just as a trustee is a mere legal owner of the assets of the trust fund that are beneficially owned by the beneficiary, so too a trustee is a mere legal owner of trust records. In claiming privilege in respect of records, a trustee would be refusing to disgorge to the beneficiary his, her or its own property.
[35] In his submissions, Mr Cullen referred me to Caldwell v Harper where Penlington J said:3
3 Caldwell v Harper (1994) 7 PRNZ 521 (HC) at 525.
As I have said earlier in Hall v Guardian Trust and Executors Co of NZ Ltd, Callan J affirmed the well-established principle that is between a trustee and a cestui que trust, privilege for legal profession documents cannot be claimed by the trustee except in respect of communications and documents brought into existence by the trustee for the purpose of litigation against him by the cestui que trust. The former are trust documents. The latter are not.
[36]Mr Cullen also referred me to Burgess v Monk where Brewer J said:4
It is well established, however, that if there is a claim for breach of fiduciary duty, the impugned trustees cannot asset legal privilege to protect themselves. The privilege belongs to the trust. As Lord Justice Harman put it in In Re Londonderry’s Settlement:
The case and opinion were, of course, trust papers, having come into existence ante litem motam. Counsel was advising the trustees as to their rights and duties and every beneficiary must be entitled to see advice of that sort. It is paid for out of the trust money and is the property of the beneficiaries.
[37] On the basis of the principles articulated in those cases, Mr Cullen submitted that the plaintiff’s claim to privilege was unsustainable. In this regard, it is relevant to note the plaintiff is not only a former trustee but also a registered beneficiary of the trust.
[38] For the trust and the other defendants, Mr Ormsby sought to draw a distinction between orthodox private trusts and trusts such as this where the trust is incorporated under the Charitable Trusts Act.
[39] Mr Ormsby submission was that whereas in the case of a private trust documentation is legally owned by the trustees that situation is to be contrasted with a trust incorporated pursuant to the Charitable Trusts Act because it is the corporate entity, as opposed to the elected trustees, who own the trust property. In itself, this does not advance matters because the trust is also a party to this litigation. Mr Ormsby also referred to clauses in the trust deed that allow the trust to limit disclosure to beneficiaries. However, each of those clauses is prefaced “other than as required by law”, which means it would be circular to rely on those clauses to establish the scope of the trust’s legal obligations to provide disclosure.
4 Burgess v Monk [2016] NZHC 527, [2016] NZAR 438 at [9] (footnotes omitted).
[40] Perhaps a more relevant distinction is that the Court is dealing with a purpose trust, a characteristic feature of which is typically the lack of identifiable beneficiaries on whose behalf the corporation (or trustees) hold the assets or records. In this case, however, that is not an impediment either. The trust, like many of its kind, allows for the registration of beneficiaries. This mechanism provides a very easy way of identifying the individuals on whose behalf the trust and trustees must act.
[41] I see no reason why the principles enunciated in Caldwell v Harper and Burgess v Monk ought not apply to a trust of this kind where beneficiaries are readily identifiable. It matters not that the registered beneficiaries of this trust have no proprietary interest in the trust documents in the way a vested beneficiary of a private trust would. As Brewer J explained in Burgess v Monk, continuing on from the paragraph quoted at [36] above:5
[10] I note that the proprietary theory referred to in that passage is no longer the jurisdictional basis upon which beneficiaries are granted access to trust documents. The jurisdiction arises from the Court’s inherent jurisdiction to supervise the administration of trusts. Beneficiaries have a right to disclosure to ensure that trustees are properly carrying out their duties and accounting to those beneficiaries. The change in jurisdictional basis, however, does not disturb the principle that the privilege is held for the benefit of the beneficiaries rather than for the personal benefit of the trustees. As a result, legal privilege is not an answer to a beneficiary’s demand for disclosure.
[42]Brewer J went on to explain:
[11] This does not mean that beneficiaries have a right to discovery of all legal advice sought and obtained by trustees. If trustees are being sued by beneficiaries, then litigation privilege applies. Trustees are not liable to disclose legal advice obtained for the purpose of their defence. They are entitled to assert privilege in the usual way and the beneficiaries’ rights to disclosure under trust law make no difference. …
[43] Accordingly, what is required here is for the defendants to distinguish between their claims to litigation privilege and solicitor-client privilege. Mr Ormsby attempted this at a high level in his submissions and it appears the majority of the privileged documents are likely to fall into both categories. Where that is the case, the defendants do not need to disclose the documents. What is required now is a detailed assessment of the documents by the defendants’ solicitors, to determine whether they are
5 Citing Erceg v Erceg [2016] NZCA 7 at [26]; Schmidt v Rosewood Trust Ltd [2003] UKPC 26, [2003] 2 AC 709 at [36], [51] and [66]; and Re Maguire (dec’d) [2010] 2 NZLR 845 (HC) at [27].
genuinely relevant, and if so whether there is a proper claim to litigation privilege (or potentiality confidentiality).
[44] Litigation privilege applies to all documents prepared from the time the defendants had “reasonable grounds” to contemplate becoming a party to litigation,6 which the defendants date at 1 June 2017, being the date they received a letter from the plaintiff threatening litigation. The privilege only applies to documents made for the “dominant purpose” of preparing for litigation.7
[45] I make one observation about the category of documents concerning an unrelated proceeding between the trust and Te Runanga o Wharekauri Rekohu Inc, an entity with which the plaintiff was intimately involved as its project manager. Mr Ormsby’s submission was litigation privilege applies to these documents. There is also no indication any of those documents would be relevant to this proceeding, and therefore discoverable. If either of those is the case, no issue arises.
[46] However, if, for whatever reason, there are any relevant documents relating to that dispute not covered by litigation privilege, then I would have thought it obvious the plaintiff should not be allowed access to them. That would effectively allow Te Runanga o Wharekauri Rekohu Inc access to the privileged legal communications of the other side in its dispute. In Schmidt v Rosewood Trust Ltd, the Privy Council explained that the right of a discretionary beneficiary (who does not have a vested proprietary interest in trust property) to access trust documents is a matter for the Court’s evaluation, not an absolute right.8 I see the position of registered beneficiaries of a purpose trust as being in a similar position. This acts as a further caveat on the principles identified in Burgess v Monk. In my view, if it were necessary to evaluate the matter, solicitor-client privilege ought to be upheld against the plaintiff in relation to the documents concerning Te Runanga o Wharekauri Rekohu Inc.
[47] Turning to the plaintiff’s challenge to the defendants’ claims to confidentiality, Mr Cullen’s primary submission is that the defendants’ affidavit evidence does not
6 Evidence Act 2006, s 56(2).
7 Section 56(1).
8 Schmidt v Rosewood Trust Ltd, above n 5, at [54] and [67]; applied in New Zealand by
Foreman v Kingstone [2004] 1 NZLR 841 (HC) at [90].
articulate and justify the basis for such claims. As the Court of Appeal has confirmed in Port Nelson Ltd v Commerce Commission, confidentiality is not grounds for withholding discovery, although it may justify restrictions on inspection and the use of the documents.9 Even then, such restrictions are only justified where they are necessary to protect a legitimate interest.
[48] The plaintiff is objecting to the defendants’ claims to confidentiality in respect of nearly 500 documents. Mr Cullen submitted that the defendants have failed to lay any evidential foundation for their claims.
[49]There is something in this.
[50] Whilst I am prepared to accept Mr Ormsby’s assurance made in the course of his submissions that the defendants’ claim is reasoned and responsible, that only takes matters so far.
[51]In Port Nelson Ltd v Commerce Commission, the Court of Appeal said:10
… documents must be approached on a one by one basis. This is the responsibility of counsel. In the vast majority of cases counsel should be able to agree whether or not a document is such as to require special protection, bearing in mind the restrictions on the use of discovered documents which apply in any event. Where there is some genuine point of difference which warrants referral to the Court, then the Judge can decide. Such referrals should be rare where experienced counsel are involved.
[52] In my judgement, the practical solution to the plaintiff’s challenge is to adjourn determination of it and direct that counsel take responsibility for conferring on the documents in question — either on a document by document basis, or by reference to suitable categories of documents — and identify any documents that justify special protection. If there is controversary about any document or category of documents then counsel may refer the same to me by memorandum and I will determine it.
[53] Mr Ormsby informed me that the majority of the documents in respect of which confidentiality is claimed relate to treaty settlement negotiations the trust has been
9 Port Nelson Ltd v Commerce Commission (1994) 7 PRNZ 344 (CA) at 348.
10 At 349.
involved in. I would note, in of itself, that is not sufficient grounds to justify a claim of confidentiality, unless the defendants can point to a term of those negotiations requiring confidentiality or some particular circumstance justifying restrictions on discovery.
[54] As to any documents in respect of which the defendants are genuinely entitled to claim confidentiality (either by agreement or determination) the details of the protection to which they are entitled is also something that I would expect counsel to resolve but would be prepared to determine if necessary.
[55] I add one further observation in relation to this. The defendants’ primary concern is with the plaintiff distributing the confidential documents to third parties, something the defendants allege he has done in the past. However, the plaintiff would be subject to the ordinary obligations not to disclose discovered documents to third parties or to use the information for a collateral purpose.11 Mr Cullen informed me the plaintiff is well aware of these obligations and has even offered (albeit his offer is redundant) to provide an undertaking that he will comply with them. Any breach of those obligations would amount to contempt of court, which the courts have generally recognised as sufficient to allay concerns about the disclosure of confidential information.12
Orders
[56]For those reasons, I make the following orders:
(a)The defendants’ application for an order pursuant to r 5.45 for security for costs is dismissed.
(b)The plaintiff’s application for an order pursuant to r 8.25 setting aside the defendants’ claims to solicitor-client privilege in the affidavit of documents sworn by Mr Kamo and filed and served herein is allowed. The defendants are to discover documents in accordance with the terms of this judgment.
11 High Court Rules 2016, r 8.30(4).
12 See NSK Ltd v General Equipment Co Ltd [2016] NZHC 1424 at [57].
(c)I adjourn the plaintiff’s application for an order pursuant to r 8.25 setting aside the defendants’ claims to confidentiality in respect of other documents in Mr Kamo’s affidavit of documents on the terms described earlier in this judgment.
[57] Costs are reserved. If counsel are unable to agree as to costs they may file memoranda in the usual way.
Associate Judge Johnston
Solicitors:
McCaw Lewis, Hamilton for plaintiff
Wynn Williams, Christchurch for defendants
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