Westgate Town Centre Ltd v Auckland Council

[2021] NZHC 858

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-000380

[2021] NZHC 858

BETWEEN

WESTGATE TOWN CENTRE LIMITED

First Plaintiff and Counterclaim Defendant

WESTGATE PROPERTIES LIMITED
Second Plaintiff

NZRPG MANAGEMENT LIMITED
Third Plaintiff

WESTGATE TOWN CENTRE (2017) LIMITED
Fourth Plaintiff

/Contd…

AND

AUCKLAND COUNCIL

First Defendant and Counterclaim Plaintiff

AUCKLAND TRANSPORT

Second Defendant

Hearing:	12 April 2021
Appearances:	B D Gray QC, A I C Denton and G Tompkins for Plaintiffs R B Lange, L B Harrison and A G A Trask-Coombs for Defendants
Judgment:	22 April 2021

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie

On 22 April 2021 at 3.00 pm Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:…………………………

WESTGATE TOWN CENTRE LTD v AUCKLAND COUNCIL [2021] NZHC 858 [22 April 2021]

WESTGATE PROPERTIES (2017) LIMITED

Fifth Plaintiff

NZRPG MANAGEMENT (2017) LIMITED

Sixth Plaintiff

Solicitors/counsel:

Wilson Harle/ B D Gray QC, Auckland Simpson Grierson, Auckland

Introduction

[1]    The plaintiffs – Westgate Town Centre Ltd, Westgate Properties Ltd, NZRPG Management Ltd, Westgate Town Centre (2017) Ltd, Westgate Properties (2017) Ltd and NZRPG Management (2017) Ltd (jointly “NZRPG”) – have brought proceedings against the first defendant, Auckland Council (“AC”), and the second defendant, Auckland Transport (“AT”), alleging that they have failed to meet various contractual obligations contained in a suite of interrelated contracts between the parties relating to the Westgate Town Centre development.

[2]    There were 23 contracts between the parties; the first was entered into in July 2004 and the last in June 2017. Counsel for the parties appreciated from the outset that discovery was likely to be a lengthy and complicated task. They have managed to progress discovery without significant dispute to date. It appears however that there was something of a misunderstanding.

[3]    The Waitakere City Council (the “WCC”) initiated the discussions which led to the various contracts and NZRPG initially negotiated and contracted with the WCC. All but one of the key documents relied on by NZRPG were entered into between it and the WCC. The WCC ceased to exist as from 1 November 2010 and under the Local Government (Tamaki Makaurau Reorganisation) Act 2009 all of its rights, liabilities, contracts and the like became the rights, liabilities and contracts of AC.

[4]    NZRPG has discovered some 7,200 documents relating to its dealings with the WCC. AC and AT did not consider that they were obligated to discover the WCC’s documents and they have not undertaken comprehensive discovery of documents held by the WCC, although in response to requests from NZRPG they have discovered a number of pre-November 2010 documents.

[5]    NZRPG considers that AC should have discovered considerably more documents which were created and/or held by the WCC. As a result it now seeks orders that the AC/AT give discovery of specific categories of documents created or held prior to 1 November by the WCC which it says are relevant to matters in dispute. AC/AT accept that they now control the WCC’s documents and that many of them have not been discovered. They say however that they should not be required to

discover documents falling within the categories sought because those documents can be of no great relevance to the matters in dispute and because giving discovery would be disproportionately burdensome.

[6]    The categories of documents sought by NZRPG were refined in the lead up to the hearing. Annexed to this judgment is an amended schedule filed by NZRPG detailing the categories of documents which it says AC/AT should be ordered to discover (Schedule 1).

[7]    There is a discrete issue. When the early contracts between NZRPG and the WCC were entered into, concerns were raised by various persons and entities about the probity of the arrangements. AC commissioned a report from Meredith Connell, solicitors in Auckland. Meredith Connell was instructed to review the arrangements and a large number of documents were provided to Meredith Connell by AC for this purpose. Meredith Connell reported back to AC in April 2012. It listed in an appendix to the report the various documents which had been reviewed by it. An unredacted copy of the Meredith Connell report was made available by AC to NZRPG and, pursuant to a request from NZRPG, many of the documents referred to in the appendix have been discovered. There are however 58 documents which AC says are privileged. They are listed in Schedule 2 to this judgment. NZRPG says that there was no reservation of privilege when the Meredith Connell report was made available to it and that any privilege in respect of the documents referred to in the report has been waived. AC says that there has been no waiver of privilege in relation to these documents.

Background

[8]    On 21 September 2018, I issued a judgment in relation to a summary judgment application brought by AC against one of the plaintiffs, Westgate Town Centre Ltd.1 I there set out the background to these proceedings. My summary was not challenged by the parties in the course of considering this discovery application and I repeat it insofar as it is relevant.

1      Westgate Town Centre Ltd v Auckland Council [2018] NZHC 2489.

[4]        From 1997 onwards, [NZRPG] … owned and operated a retail centre known as Westgate. It was located to the west of the North-Western motorway and to the south of the then route of SH16 (now known as Fred Taylor Drive).

[5]        In 2002, [the WCC], which was the territorial authority then responsible for the area in which the retail centre is situated, approached the NZRPG companies to discuss the development of a new sub-regional town centre. It was proposed that this could be achieved by expanding the existing retail centre onto land surrounding it, and in particular, onto land to the north of Fred Taylor Drive.

[6]        In 2004, one of the NZRPG companies and the [the WCC] executed a memorandum of understanding which recorded that the parties would seek to work together, and, inter alia, would prepare a town centre concept plan to assist in redeveloping the existing Westgate retail centre into a vibrant and visually attractive new town centre.

[7]        Consistent with the memorandum of understanding, [the WCC] proposed changes to its district plan and promulgated a plan change – plan change 15 – intended to advance the new town centre concept. This plan change was adopted. It sought to facilitate the new town centre development and it made provision for roads, amenities and street typologies. It also provided, if practicable, for the relocation or undergrounding of an existing 110 kV high voltage transmission line which passed over part of the land it was anticipated would be developed.

[8]        In 2009 and 2010, [the WCC] and various companies in the NZRPG [group] entered into a number of further agreements relating to the development of the new town centre.

[9]        As at 1 November 2010, [the WCC] ceased to exist and all contracts entered into by it with the NZRPG companies were taken over by [AC/AT]. Thereafter, a number of replacement and further contracts were entered into by [AC/AT] with NZRPG companies. …

[10]      [NZRPG] says that it was agreed that the new town centre would be an expansion of the NZRPG companies’ existing Westgate shopping centre. It was to be a compact, integrated sub-regional town centre developed around a cruciform comprising Maki Street, running north-south, and Fred Taylor Drive, running east-west. The new town centre was to be based on “new urbanism design principles”, characterised by street based developments incorporating high pedestrian amenity, public transport, employment, cultural and recreational facilities, and with high specifications to ensure environmental performance.

[11]      [NZRPG] says that the proposed new town centre required [AC/AT] to develop roading and infrastructure in appropriate form, to enable appropriate development. …

…

[9]In my judgment I summarised the then statement of claim as follows:

[12]      The statement of claim filed by [NZRPG] is a lengthy and complex document. In essence, the plaintiffs say that [AC/AT], in an interrelated suite of contracts that must be construed together and in context, agreed to assist in developing the type and form of the new town centre envisaged.

[13]      The NZRPG companies claim in their proceedings that, when the suite of interrelated contracts is properly interpreted, [AC/AT] agreed to develop the town centre as follows:

(a)Fred Taylor Drive – to transform Fred Taylor Drive from a state highway into a town centre street with high quality materials, traffic calming measures, signalised intersections, pedestrian crossings at strategic access points, on-street parking, active street frontages, and street furniture and planting necessary to achieve integration between the original Westgate retail centre and the new Westgate town centre. There was to be pedestrian and vehicular connectivity both north-south and east-west.

(b)Northside Drive – to construct Northside Drive East, including placing a bridge over SH16 connecting Northside Drive East with Northside Drive West, within a reasonable timeframe, but before the first buildings were available for public use in an area known as Precinct A. The plaintiffs say that the development of Northside Drive was fundamental to the town centre concept so that Fred Taylor Drive could operate as agreed.

(c)Town square – to develop a town square and surrounding roads to permit the free movement of pedestrians and vehicular traffic around and across it.

(d)Bus interchange – to progress a bus interchange at an agreed location.

(e)Maki Street South – to fund and complete an upgrade to Maki Street South (in the original Westgate retail centre) by the time the first buildings were available for public use in Precinct A.

(f)Undergrounding – to agree with Transpower the undergrounding of the existing high voltage transmission line.

(g)Public buildings – to design and build a library/community centre at the western end of the town square, using reasonable endeavours to have the centre completed at the same time as other buildings around the town square, and to settle a service level agreement for Precinct A.

[14]      The NZRPG companies claim that [AC/AT have] failed to meet these various contractual obligations as follows:

(a)Fred Taylor Drive – has been developed as a four to six lane highway that prioritises high volume traffic flow. It does not encourage integration or vehicular or pedestrian connectivity between areas to its north and south. It does not have active street frontages or on-street parking. The intersections have not been constructed with traffic or speed calming measures. Vehicles are prevented from moving between the original Westgate retail centre and the new town centre, and there are numerous turning restrictions from and onto the road. It continues to have limited access status.

(b)Northside Drive – has not been developed and no bridge has been put in place.

(c)Town square – is difficult to navigate and has traffic measures (for example, planter boxes and signs) such that it accommodates only one lane traffic. Other traffic measures have been put in place in the surrounding streets preventing the free-flow of traffic entering and exiting the town square.

(d)Bus interchange – has not been proposed or developed.

(e)Maki Street South – … [works to upgrade the southern end of Maki Street were significantly delayed].

(f)Public buildings – the library and community centre are only now under construction and have not been completed.

(g)General – the Council and Auckland Transport have failed to negotiate in good faith. They have not used their best endeavours to resolve a service level agreement for Precinct A.

[15]      In their first cause of action, the NZRPG companies say that [AC/AT have] breached [their] obligations as set out above. They say that, as a result, the new Westgate town centre is not the compact, integrated sub-regional town centre contracted for and that it is fundamentally dysfunctional. The NZRPG companies assert that they have, as a consequence, suffered and continue to suffer substantial losses, and they claim damages on this basis.

[10]   An amended statement of claim has since been filed. It does not significantly recast the pleadings noted above although it does increase the damages sought from AC/AT to “… at least $80,572,562 with the amount continuing to accrue …”. This sum comprises reduced rental income which NZRPG asserts it has suffered as a result of AC/AT’s breaches of the contractual obligations ($13,133,279) and a reduction in the market value of NZRPG’s assets ($67,439,283).

[11]   The amended statement of claim substitutes a new second cause of action for that contained in the initial statement of claim. Two of the NZRPG companies seek an order that AC calculate remissions they say are payable to them by AC under “a programme known as the Tool for Sustainability Code of Practice”. The two companies say that AC has breached a Development Conditions Agreement by not calculating the remissions payable to them and by not reducing their liability in respect of the development conditions. The remissions are estimated to be in the vicinity

$1,400,000.

[12]   AC/AT have filed a statement of defence to the initial statement of claim but not as yet to the amended statement of claim. They have admitted many of the base factual allegations, including the documents relied on by NZRPG, but they deny much of the detail alleged in the statement of claim. By way of example:

(a)in paras 4.5 and 4.6 of the initial statement of claim (and the amended statement of claim), NZRPG asserts that, following discussions, it and WCC executed a memorandum of understanding which recorded that the parties would work together to produce a city centre concept plan in order to expedite the necessary changes to the district plan that would be required. It goes on to assert that, in entering into the memorandum of understanding, WCC advanced its vision to develop a sub-regional town centre, that NZRPG agreed to support WCC’s proposals, that NZRPG sacrificed significant existing commercial opportunities open to it, that the parties recorded that a cooperative approach would be to their mutual benefit and in addition deliver a public benefit, that it would allow WCC to benefit from private sector capital and expertise without compromising its commitment to objective and rational planning, that it would enhance the ability to deliver a city centre in accordance with WCC and Auckland Regional Council’s strategies, that it would most efficiently enable the necessary district plan changes and changes to the metropolitan urban limit, and that it would align WCC’s aspirations with a like-minded organisation which already had a significant investment in the Westgate shopping complex and the surrounding land. The pleading from AC and AT in response is to admit

and rely on the memorandum of understanding as if it were pleaded in full, but to otherwise deny the allegations made in the statement of claim; and

(b)in para 4.7 NZRPG alleges that, consistently with the memorandum of understanding, it and WCC cooperated to develop a Westgate town centre concept plan in accordance with WCC’s vision which extended the original Westgate complex north to a new road to be developed (Northside Drive), centring on a main street as a north/south axis and Fred Taylor Drive as the east/west axis (as a town centre style road), both connecting to the original Westgate development and expanding the town centre in an integrated and cohesive way. NZRPG says that Northside Drive, once built, was to provide four access points into the town centre and remove traffic from “the slow speed Fred Taylor Drive”, allowing its function to change from a traffic dominated arterial route to a town centre road. AC and AT’s response is to admit that “consistently with the [memorandum of understanding] the parties cooperated to develop a town centre concept plan”. They otherwise deny para 4.7.

There are many other examples in the statement of defence where AC/AT rely on the contracts, but deny the detail/interpretation pleaded in the statement of claim. The effect of AC/AT’s pleading is to put NZRPG to proof of the various matters it alleges.

The application

[13]   The application was brought pursuant to r 8.19 of the High Court Rules 2016, which permits the Court to order further discovery if there are grounds for believing that a party has not discovered one or more documents or groups of documents that ought to have been discovered.

[14]   It was common ground between counsel that an application under r 8.19 calls for a four stage assessment:2

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

(a)are the documents sought relevant, and if so, how important will they be?

(b)are there grounds for believing that the documents sought exist?

(c)is discovery proportionate?; and

(d)weighing and balancing these matters, in the Court’s discretion, is an order for further discovery appropriate?

[15]   It was argued for AC and AT that, with one exception, the discovery categories now sought by NZRPG are not tailored discovery categories that have previously been agreed by the parties or directed by the Court. It was submitted that the application should be treated as an application to determine the proper scope of tailored discovery required under rr 8.8 to 8.20. It was suggested that the important difference is that the nature of the enquiry required is not whether the defendants have failed to make proper and adequate discovery, but whether the discovery sought by the plaintiffs is required at all, with reasonableness and proportionality being the key considerations.

[16]   Considered in the round, I am not persuaded that it makes much difference which rule or rules the application falls to be considered against. There is no dispute that documents falling within the identified categories are likely to exist. There is no dispute that these documents have not been discovered. What is in dispute is whether or not the documents sought are likely to be relevant (and if so, how important they will be) and whether discovery is proportionate.

The central issue – submissions

[17]   Both Mr Gray QC for NZRPG, and Mr Lange for AC/AT, agreed that the central issue in the substantive proceedings will be the proper interpretation of the various contracts entered into between the parties.

[18]   Mr Gray submitted that the suite of contracts will have to be interpreted in context and that the legal basis for the contractual interpretation pleaded by NZRPG arises in two distinct ways:

(a)through a contextual approach to the express terms of the interrelated contractual documents, where the terms fall to be interpreted consistently with the underlying purpose and genesis of the transactions, as evinced from the parties’ years of engagement in relation to the Westgate town centre development; and/or

(b)by reference to the background circumstances which explain the existing state of affairs upon which the contracts were predicated and which are fundamental to the benefit and operation of the contracts. It is argued (and pleaded) that the background circumstances give rise to implicit obligations on the parties.

He argued that the background materials are necessary to aid in the interpretation that will be required.

[19]   Mr Lange accepted that there are a series of interrelated contracts, with a common genesis and commercial purpose. He submitted however that this common genesis and purpose are obvious from the contracts themselves. He asserted that each contract will have to be construed by reference to its own terms and circumstances. He submitted that the genesis and background commercial purpose does not require that the contracts be interpreted collectively, and that their interpretation does not require that the background materials be discovered.

Analysis

Relevance

[20]   In considering a discovery application, the parties’ pleadings dictate what is and what is not relevant.3 It is necessary for the Court to identify the issues arising from the pleadings and to consider whether or not the documents sought are likely to be relevant to those issues.

[21]   Here, the pleadings put a very large number of matters in issue, including the following;

3      Chatfield & Co Ltd v Commissioner of Inland Revenue [2016] NZCA 614 at [21]; Intercity Group (NZ) Ltd v Nakedbus NZ Ltd [2013] NZHC 1054 at [17].

(a)what preferences were expressed by the WCC to NZRPG for the development of the Westgate town centre, including whether WCC had a preference for pedestrian amenity and “new urbanism design principles”;

(b)the type of town centre development the WCC and/or NZRPG envisaged when they entered into the memorandum of understanding in 2004;

(c)the nature of the town centre proposed in the town centre concept plan prepared by the parties;

(d)what was ultimately reflected in Plan Change 15, including the extent to which the proposed new town centre was to be street based, the extent to which it sought high pedestrian amenity and whether it was focused on principles of new urbanism;

(e)the reasons for changes made to Plan Change 15, including whether they were made as a result of concerns regarding Fred Taylor Drive, and whether it could be redesigned successfully to operate as a town centre road;

(f)whether the redevelopment of Fred Taylor Drive was critical to the town centre and infrastructure envisaged in Plan Change 15;

(g)whether the redevelopment of Fred Taylor Drive needed to be completed before the first buildings in Precinct A were occupied;

(h)whether the contracts were entered into to facilitate the development of a new town centre at Westgate in accordance with Plan Change 15, against the background recorded in the memorandum of understanding and the comprehensive development plans prepared;

(i)whether the contracts were predicated on the construction of the road networks (including Northside Drive) set out in a document known as

the Massey North Urban Concept Plan, a further document known as the Massey North Urban Concept Plan road network, and the various comprehensive development plans; and

(j)whether the obligations created by the contracts required AC/AT to construct identified infrastructure and key roads in accordance with Plan Change 15, the Massey North Urban Concept Plan and the Massey North Urban Concept Plan road network.

[22]   NZRPG has set out in its pleadings the specific contractual obligations it says were created. It also alleges that there were various implicit obligations, arising from the objective factual matrix in place at the time that the various contracts were put in place. It asserts in various places in its statement of claim that there was a “substratum of facts” upon which the suite of contracts were predicated. By way of example, in para 4.25 of the amended statement of claim, it asserts that various terms and obligations which it outlines in its pleadings were express or implied terms in the suite of contracts because of the state of affairs (outlined in the pleadings) upon which the suite of contracts were predicated. By way of further example, in para 6.3, it alleges that the overall urban form, design and infrastructure requirements for the Westgate town centre (that are pleaded) were the essential substratum of facts upon which the suite of contracts was agreed. It goes on in para 6.4 to allege that it relied on the development of Westgate town centre progressing in accordance with the substratum of fact pleaded, and that it would not have entered into the suite of contracts had it known that AC/AT would not develop or operate the town centre in accordance with Plan Change 15, the comprehensive development plan and the memorandum of understanding.

[23]   As already noted, AC/AT have not filed a statement of defence to the amended statement of claim and all of the above allegations are made in the amended statement of claim. To date, in large part, NZRPG’s interpretation of the various contracts is denied by AC/AT. Rather than plead their own interpretation of the contracts, they deny the contractual interpretations pleaded by NZRPG, and rely on the terms of each contract as if pleaded in full.

[24]   Clearly, at the substantive hearing, the Court will be required to interpret the terms of the various contracts entered into between the parties.

[25]   In my summary judgment decision, I summarised my understanding of the approach the Court will be required to take in interpreting the contracts as follows:

[46]      Traditionally, the Courts in New Zealand applied the “plain meaning” rule – if the words of the contract were plain and unambiguous as they stood, they were treated as speaking for themselves and evidence of context was not admitted to show that the parties intended something different.⁴ More recently, the Courts have become more willing to receive evidence of surrounding circumstances for the purpose of interpreting written contracts.⁵ Such evidence can sometimes have the effect that what prima facie seems the most obvious meaning of the words used, is displaced by a secondary, less obvious meaning.⁶ The Courts have held that evidence of the context in which a contract was entered into can be admitted, because it is always possible that what appears to be the plain meaning of the document may, on further examination, turn out not to be.⁷

[47]      This more modern approach was best articulated by Lord Hoffmann in Investors Compensation Scheme Ltd v West Bromwich Building Society.⁸ He said as follows:⁹

… I do not think that the fundamental change which has overtaken this branch of the law … is always sufficiently appreciated. The result has been, subject to one important exception, to assimilate the way in which such documents are interpreted by judges to the common sense principles by which any serious utterance would be interpreted in ordinary life. Almost all the old intellectual baggage of “legal” interpretation has been discarded. The principles may be summarised as follows:

(1)      Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.

(2)      The background was famously referred to by Lord Wilberforce as the “matrix of fact,” but this phrase is, if anything, an understated description of what the background may include. Subject to the requirement that it should have been reasonably available to the parties and to the exception to be mentioned next, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man.

4      See generally Matthew Barber “Contents of the Contract” in Jeremy Finn, Stephen Todd and Matthew Barber Burrows, Finn and Todd on the Law of Contract in New Zealand (6th ed, LexisNexis, Wellington, 2018) 177 at [6.3.1].

5      At [6.3.1].

6      At [6.3.1].

7      At [6.3.2].

8      Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 (HL).

9      At 912-913.

(3)      The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent. They are admissible only in an action for rectification. The law makes this distinction for reasons of practical policy and, in this respect only, legal interpretation differs from the way we would interpret utterances in ordinary life …

(4)      The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax …

(5)      The “rule” that words should be given their “natural and ordinary meaning” reflects the common sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had …

(Citations omitted)

[48]      This statement of the law was adopted in New Zealand in Boat Park Ltd v Hutchinson.¹⁰ It has been relied on in numerous contractual interpretation cases since. Recently, in Firm PI 1 Ltd v Zurich Australian Insurance Ltd, the Supreme Court declined to reconsider the principles of contractual interpretation, and referred again to Lord Hoffmann’s approach as representing the position in New Zealand.¹¹

[49]      It follows that the exercise of interpreting a contractual provision involves identifying what the parties meant through the eyes of a reasonable reader. That meaning is most likely to be gleaned from the language used,¹² but the Courts will also look at the contract as a whole and in context, because the words used by the parties must be set in that context. The Courts are prepared to look at the factual matrix, even if the words of the contract seem clear at first sight.¹³ The context of an agreement will usually operate as a cross-check, but the plain meaning of a provision is provisional, and is always susceptible to being altered by context.¹⁴ Pre-contractual negotiations, if they shed an objective light on meaning, can be relevant and admissible, but not if they are simply evidence of subjective intention.¹⁵

10     Boat Park Ltd v Hutchinson [1999] 2 NZLR 74 (CA) at 81-82.

11     Firm PI 1 Ltd v Zurich Australian Insurance Ltd [2014] NZSC 147, [2015] 1 NZLR 432 at [60].

12     Arnold v Britton [2015] UKSC 36, [2015] AC 1619 at [17].

13     Vector Gas Ltd v Bay of Plenty Energy Ltd [2010] NZSC 5, [2010] 2 NZLR 444 at [4] per Blanchard J, at [22] per Tipping J, at [64] per McGrath J.

14     At [24] per Tipping J.

15     At [20] per Tipping J.

[26]   Again, neither NZRPG nor AC/AT took issue with these paragraphs in the course of the hearing into the discovery application. Indeed, AC/AT expressly adopted them (before going on to suggest further refinements – discussed below at [28]).

[27]   Mr Gray broadly (albeit not expressly) accepted the views set out above. He went further. He relied on the judgment of Lord Wilberforce in Reardon Smith Line Ltd v Hansen Tangen.16 His Lordship there stated as follows:17

When it comes to ascertaining whether particular words apply to a factual situation or, if one prefers, whether a factual situation comes within particular words, it is undoubtedly proper, and necessary, to take evidence as to the factual situation. …

It is less easy to define what evidence may be used in order to enable a term to be construed. …

No contracts are made in a vacuum: there is always a setting in which they have to be placed. The nature of what is legitimate to have regard to is usually described as ‘the surrounding circumstances’ but this phrase is imprecise: it can be illustrated but hardly defined. In a commercial contract it is certainly right that the court should know the commercial purpose of the contract and this in turn presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating. …

It is often said that, in order to be admissible in aid of construction, these extrinsic facts must be within the knowledge of both parties to the contract, but this requirement should not be stated in too narrow a sense. When one speaks of the intention of the parties to the contract, one is speaking objectively – the parties cannot themselves give direct evidence of what their intention was – and what must be ascertained in what is to be taken as the intention which reasonable people would have had if placed in the situation of the parties. Similarly, when one is speaking of aim, or object, or commercial purpose, one is speaking objectively of what reasonable persons would have in mind in the situation of the parties. …

… what the court must do must be to place itself in thought in the same factual matrix as that in which the parties were. … in the search for the relevant background, there may be facts, which form part of the circumstances in which the parties contract, in which one or both may take no particular interest, their minds being addressed to or concentrated on other facts, so that if asked they would assert that they did not have these facts in the forefront of their mind, but that will not prevent those facts from forming part of an objective setting in which the contract is to be construed. …

16     Reardon Smith Line Ltd v Hansen Tangen [1976] 3 All ER 570.

17     At 574-575.

Mr Gray argued that where it can be reliably identified, regard should be had to the commercial purpose and overall structure of the parties’ bargain. He argued that the factual circumstances upon which a contractual relationship was predicated can either give:

(a)rise to implied contractual terms, submitting that it can be implicit from the express terms of a contract that a certain existing state of affairs or substratum of fact will continue, or;

(b)create an implicit obligation, beyond the express terms of the contract, to maintain the existing circumstances upon which the contract was predicated.

[28]   Mr Lange’s response was to argue that although there is no conceptual limit on what can be regarded as background, to be admissible, it has to be background that a reasonable person would regard as relevant. He argued that it would not normally be proper to include in the matrix matters in which one party was not involved, and that pre-contractual negotiations can only be relevant and admissible if they shed an objective light on meaning and are not simply evidence of subjective intention. He submitted that strict control has to be exercised as to relevance due to the danger that the time spent on considering contextual material can be out of proportion to its usefulness and that evidence of background circumstances is not relevant if it tends to prove only what individual parties subjectively intended or what a party’s negotiating stance may have been. While he accepted that in the context of a discovery application, the Court should not normally access the substantive merits of the pleadings, he argued that the submissions advanced for NZRPG are “a real stretch”, and that the Court is entitled to take this into account in considering the reasonableness of the discovery sought. He argued that the only relevant existing circumstances can be those apparent from the various key background documents, and that no further historical discovery is required so that the contracts can be understood.

[29]   It would not be appropriate, in the context of this judgment, to assess which of the parties’ assertions is correct. Suffice it to say that both counsel broadly accepted that the contractual terms will fall to be interpreted contextually and in light of the

relevant factual matrix, and that this can include any background information that was reasonably available to the parties at the time the contracts were entered into and which a reasonable person would regard as relevant.18

[30]   Given the pleadings, it cannot be said with any confidence that discovery of the additional categories of documents sought by NZRPG would result only in the disclosure of irrelevant documents. NZRPG has expressly put in issue that the suite of contracts were predicated on the substratum of facts in place at the time the contracts were agreed. It asserts that there are terms to be implied into the contracts and that this can be gleaned from the factual matrix in place at the time. It says that the interpretation of the contractual terms, both express and implied, is likely to be assisted if reference can be made to the background materials.

[31]   I accept that the documents sought are likely to throw light on these issues. The WCC’s vision for the Westgate town centre ultimately became the parties’ joint vision. Many of the pre-contractual documents held or created by the WCC are likely to be neutral. It is however very likely that the WCC will have created documents relevant to its vision, and that they will provide insight into the WCC’s intentions at the time. It is also likely that the WCC’s vision was communicated to NZRPG. It may have been adopted by NZRPG. It may have become part of the substratum of facts which may have underpinned the contracts.

[32]   I note that Mr Barbour, on behalf of NZRPG, has deposed that it was the WCC’s representatives who prepared agendas for meetings, prepared meeting packs, kept notes, circulated minutes of key meetings, and arranged for consultation through working groups. The WCC’s internal documents are likely to contain material relating to the discussions between the parties. They are likely to be more comprehensive than NZRPG’s documents because of the WCC’s secretarial role. The materials are likely to provide the best, or perhaps the only, documentary evidence of many of the parties interactions. They are also likely to provide evidence of internal events, for example, the WCC’s council meetings. The WCC’s internal records are also likely to address other matters relevant to pleaded issues, for example, whether the WCC viewed the development of Fred Taylor Drive as critical to the delivery of the envisaged Westgate

18     See, Firm PI1 Ltd v Zurich Australian Insurance [2014] NZSC 147, [2015] 1 NZLR 432 at [60].

town centre. Further, the development and processing of Plan Change 15 was a regulatory process, for which the WCC was primarily responsible. It is inevitable that the WCC will have created the majority of the documents relating to the Plan Change.

[33]   I accept that pre-contractual material of the kinds sought is likely to contain unilateral evidence of WCC’s subjective intention. This may affect the admissibility of documents discovered but this possibility should not at this stage impact on AC/AT’s obligation to discover. A party is required to discover a relevant document, even if it is ultimately inadmissible.19

[34]   NZRPG provided a schedule setting out why it says each category of documents it seeks is relevant to pleaded issues. AC/AT reproduced that schedule and included its response to the same. I do not need to go through these schedules in detail. Suffice it to say that NZRPG broadly asserted that materials sought are likely to disclose WCC’s preferences, inter-party discussions leading to the various contracts, the purpose and effect of the contracts and whether or not the town centre concept proposed was ultimately reflected both in the contracts and in what transpired. AC/AT’s response is broadly that the contracts are clear in their terms and that they can be objectively assessed by comparing the one contract with the others.

[35]The parties’ respective stances are largely a reflection of their pleadings.

[36]   I cannot determine the significance of unknown documents in advance. I am not however prepared to assume that the types of documents which NZRPG seeks should be discovered will necessarily be irrelevant.

[37]In my earlier judgment, I noted as follows:

[59] I agree with [NZPRG] that there is a substantial dispute over what the suite of contracts obliged [AC] and [AT] to do. I accept contextual evidence, properly tested, will need to be put before the Court to enable it to determine those disputes. …

I remain of this view. In my judgment, documents falling into the various categories sought by NZRPG are likely to be relevant to the issues in dispute. Whether they are

19     Attorney General v Institution of Professional Engineers [2018] NZHC 74 at [28].

admissible will have to be considered once they are discovered (if either party wishes to use them).

Proportionality

[38]   Mr Lange submitted that proportionality also connotes materiality – the likelihood that discovery will result in admissible evidence of meaningful probative value to an issue in dispute.20 He argued that relevance is only the starting point when determining whether particular discovery is required. Mr Gray accepted that to assess proportionality, the Court has to balance the cost, effort and time required to provide discovery against the value of the material sought.

[39]   I have considered the likelihood of finding relevant documents if further discovery is ordered. For the reasons I have set out, I consider that the chances of finding relevant documents is high. As I have already noted, all bar one of the key contracts relied on by NZRPG were entered into with the WCC and the WCC was the record keeper.

[40]   I have also considered the likely relevance of any documents discovered. I am not prepared to assume that the documents will be of no or limited relevance. There is no way of assessing that in advance, given the matters raised in the pleadings. In all but one of the contracts relied on by NZRPG, there is a “entire agreement” clause, recording that the agreement recorded the entire understanding and agreement of the parties relating to the matters dealt with and that the agreement superseded all previous understandings or agreements between the parties relating to those matters. Mr Lange submitted that such clauses are “a relevant, if not decisive” consideration. He argued that the existence of the clause suggests that NZRPG is pursuing discovery to support hopeless, or at least extremely desperate, interpretation arguments. I do not necessarily accept this, at least for present purposes. As Mr Gray argued, an entire agreement clause must extend to all the terms of the agreement, both express and implied. Here, NZRPG asserts that the further discovery sought is likely to be relevant to terms it submits should be implied into the contracts, or that the further discovery is likely to clarify the factual substratum underlying the contracts. I do not consider

20     Robert Jones Holdings Ltd v McCullagh [2016] NZHC 2529 at [39].

that the entire agreement clauses are themselves a bar to the application made by NZRPG.

[41]   I have taken into account that the proceedings cover a wide factual ambit. They involve consideration of a public/private partnership between a local authority and private entities. The issues raised are likely to be of some general importance. The damages claimed are large – some $80 million.

[42]   Ms Quinn filed an affidavit in support of AC/AT’s notice of opposition recording that AC/AT did take some steps to try and address NZRPG’s concerns. She confirmed however that AC did not attempt to locate physical documents that might fall within the categories sought by NZRPG. She said that AC holds a very large number of physical files transferred from the WCC, and that the contents of those files are listed in spreadsheets. She said that the spreadsheets provide very limited information about what is actually in any particular file or box, and that to establish whether items in any given box or file are relevant to the plaintiffs’ request for further discovery, the files or the boxes will need to be recalled from AC’s archives and manually reviewed. She said that this will be an extremely time consuming and costly process. She further said that electronic searches were undertaken by a team within AC. She said that, to the extent that any of the WCC’s documents exist on AC’s email archive, the searches included all of the WCC emails and attachments transferred to AC. She further explained that the databases searched included all of the WCC’s emails and attachments transferred to AC. She said that there is no record of any other WCC documents being retained electronically anywhere else in AC’s computer systems but that it is possible that some documents may have been stored elsewhere on AC’s general shared servers. She said that without any specific record indicating where such documents may be located, it is “practically impossible” to search for them.

[43]   I am not persuaded on the affidavits filed that the steps taken by AC to date are satisfactory or that it would be impossible to discover the material sought by NZRPG.

(a)Ms Quinn does not say that a search of the physical files is impossible; rather she said that it will be time consuming and expensive. These

concerns have to be balanced against the matters at issue in this proceeding and AC’s resources to comply under any order;

(b)Ms Quinn’s explanations in relation to the electronic searches relates to searches of AC’s database for files created by the WCC and transferred to AC. There is no evidence that searches have been carried out directly on the WCC’s electronic servers or archives. Searching AC’s electronic system for the WCC’s documents may be a very different exercise to searching the WCC’s own electronic archives;

(c)there are documents already discovered which list where documents created or held by the WCC were stored. No attempt seems to have been made to follow these leads.

[44]   AC and AT are not under resourced. They are public bodies. They have obligations at law to maintain public records and not to delete the same.21 I accept that there will have been a loss of institutional knowledge and memory as a result of AC assuming the legal obligations of the WCC, but that does not in my view absolve AC/AT from complying with their discovery obligations insofar as they are able to do so. I am not persuaded that, to date, they have properly done so.

[45]   Given the matters and amount at issue, the statutory obligations of AC, its role as a public authority and the resources available to it, the further discovery sought by NZRPG is not, in my judgment, disproportionate.

[46]   Accordingly, I hold that AC/AT must discover any and all documents falling within the categories listed in Schedule 1 to this judgment. I consider the appropriate timetable for this further discovery to occur below.

B        The documents listed in the Meredith Connell report

[47]   As I noted above, the report from Meredith Connell commissioned by AC was made available to NZRPG. There were no redactions in the report and it was provided in full. The information provided included the appendix which listed the documents

21     Public Records Act 2005.

made available to Meredith Connell by AC for the purposes of preparing the report and which Meredith Connell recorded were “key to [its] review”. As can be seen from Schedule 2 to this judgment, the appendix included summaries for most of the documents; for example, document 205.041 created in September 2011 was described as being an email exchange between two individuals, with a commentary by a third individual, discussing the pros and cons of one of the works development agreements between the WCC and NZRPG and the works development agreements and infrastructure funding agreement generally. Another document – 203.043 – was described as being an email from an employee with the WCC providing an update on progress on Westgate Street, Northside Drive and the NZRPG infrastructure funding agreement.

[48]Section 65(2) of the Evidence Act 2006 reads as follows:

A person who has a privilege waives the privilege if that person, or anyone with the authority of that person, voluntarily produces or discloses, or consents to the production or disclosure of, any significant part of the privileged communication, information, opinion, or document in circumstances that are inconsistent with a claim of confidentiality.

[49]   Here the Meredith Connell report was disclosed by AC to NZRPG voluntarily. There is no evidence suggesting that the Meredith Connell report was disclosed only for a particular purpose or that AC sought to reserve privilege in the documents referred to in the report when it was disclosed. Where privilege in a principal document is waived, waiver generally extends to all connected documents, and the enquiry becomes whether there is a commonality of issues addressed by the connected documents.22 A party to a privileged communication is not entitled to make selective disclosure that can leave the inspecting party, and potentially the Court, with a misleading picture.23

[50]   Ms Harrison, who argued this aspect of the matter for AC/AT, submitted that AC/AT will not be seeking to rely on the Meredith Connell report at the substantive hearing, because in their view it does not relate to issues which will be before the

22     Pacific Pine Products Ltd v KRTA Ltd HC Gisborne CP34/89, 24 June 1993 at [28]-[30].

23     NZX Ltd v Ralec Commodities Pty Ltd [2015] NZHC 241.

Court. She argued that in these circumstances there is no possibility that the Court could be misled, and that there can be no necessary injustice to NZRPG.

[51]   With respect, this argument begs the question. The documents in respect of which privilege is claimed were not made available to me for inspection. Neither Mr Gray nor I can speculate as to whether or not NZRPG would be left with a misleading picture if the documents are not made available to it. Rather, on the face of it, there seems to be some commonality between the issues addressed in the pleadings and the documents in respect of which AC/AT claim privilege. That commonality falls to be judged from the brief summaries of the documents contained in the appendix to the Meredith Connell report and also from the report itself. It seems reasonably clear that the report is likely to be helpful to NZRPG and to the Court in understanding the genesis of the contractual arrangements and their intended purpose.

[52]   Because the Meredith Connell report and the appendix were made available to NZRPG without any reservation of privilege, the documents referred to in the report and which were key to Meredith Connell’s opinion, must, in my judgment, be disclosed. Any privilege has been waived.

Result

[53]For the reasons I have set out, I order as follows:

(a)AC/AT are to provide discovery of all documents created or controlled by the WCC or its agents prior to 1 November 2010 and any documents subsequently created or controlled by AC/AT, that fall within the categories listed in Schedule 1 to this judgment;

(b)AC/AT are to provide discovery of the documents listed in Schedule 2 to this judgment;

(c)the discovery directed is to incorporate the listing and exchange protocol set out in Part 2 of Schedule 9 to the High Court Rules, except that:

(i)documents may be provided by AC/AT to NZRPG in iterative tranches as they become ready for discovery/inspection;

(ii)a formal affidavit of documents can be sworn and served once discovery is complete;

(iii)any documents provided in iterative tranches are to be adequately numbered so that they can be included in the parties’ nominations for the agreed bundle of documents for the substantive hearing;

(d)the further discovery ordered is to be completed on or before Monday 14 June 2021;

(e)leave is reserved to AC/AT to come back to the Court if this timetable proves impracticable;

(f)leave is reserved to all parties to come back to the Court in relation to compliance with this order or the timetable which is already in place to ready the proceedings for hearing;

(g)the close of pleadings date is deferred until one month following service of AC/AT’s final sworn affidavit of documents.

Costs

[54]   NZRPG has been successful in its claim for further and better discovery. It is entitled to its reasonable costs and disbursements. The application was relatively complex and it is my preliminary view that costs should be assessed on a 2C basis. It is also my preliminary view that second counsel was necessary but not third counsel. If the parties agree with these preliminary views, it should be relatively easy for counsel to agree costs without the need for the Court to become further involved.

[55]If there is disagreement, then I direct as follows:

(a)any application for costs by NZRPG is to be by way of memorandum, to be filed within 10 working days of the date of this judgment;

(b)any opposition to NZRPG’s application for costs is also to be by way of memorandum, to be filed within 10 working days thereafter;

(c)memoranda are not to exceed five pages.

I will then deal with the issue of costs and disbursements on the papers unless I require the assistance of counsel.

Wylie J

Schedule 1 - Refined Categories

drafts relevant to WCC’s engagement with NZRPG regarding developing a sub-regional town centre at Westgate through the expansion of Original Westgate , negotiation  and  execution  of  the  Memorandum  of  Understanding dated July 2004, and subsequent town centre concept plan developed by NZRPG and WCC.

WCC’s documents relevant to WCC’s proposed changes to its District Plan by way of PC1S and the proposed shift

in the MUL, in so far as these documents relate to:

(a)the location of Westgate Town Centre;

(b)overall and specific design of the Westgate Town Centre;

(c)any integration with the Original Westgate;

(d)any expansion of or changes to the Original Westgate;

(e)the form, function and design of Fred Taylor Drive;

(I)the development of a road on the northern edge of the PC1S area of hand to link Fred Taylor Drive to the West and Trig Road to the east (yellow road (A13-A15), including assessment of what that road would enable or provide

(g)Maki Street South;

(h)the Town Square;

(i)the Town Square Roads;

(j)Bus Interchange; and

(k)Undergrounding (if related to:

a.Overall design of the town centre;

b.Parties’ Commitment to Westgate Town Centre project.)

3WCC’s documents relevant to WCC’s drafting, preparation, development, finalisation and consideration of the MNUCP (including the MNUCP Road Network)

4Documents relevant to WCC’s assessment and irtput into the Integrated Traffic Assessments by Sinclair Knight Metz and Traffic Design Group for the purposes of the CDP for Precincts A and B, including  documents relevant to:

2004 -20U6

2004 - Z0O7

2007 - 2010

(a)discussions between WCC and Transit NZ regarding the ITAs

development of a concep plan by WCC and Transit NZ for Hobsonville load between Westgate and Massey North (attached as Appendix A Plan 7 to the ITA).
S	Documents relevant to WCC’s consideration of the CDP for Precincts A and B,includfng documents relevant to: (a)    correspondence with NZRPG regarding the content, and drafting of the CDP (b)   assessment and correspondence regarding accompanying reports and material	2008-2009
6	Documents relevant to WCC’s preparation, consideration and approval of resolution C98/2009 including all documents and reports prcvided to councillors in considering the resolution.	2009
7	Documents relevant to WCVs preparation, consideration and approval of resolution 17B/2009 including all documents and reports provided to councillors in considering the resolution.	2009
8	Documents r‹ levant to 'ACC’s preparattun, drafting, negotiation, entry into and consideration of the MSSAA agreement.	2008 -2009
9	WCC’s documents relevant to the preparation, drafting, negotiation, and entry into the Infrastructure Funding \ gre ement (“IFA”) dated 22 February 2010. Including: (a) Drafts of the IFA, along wtih WCC’s internal consideration of the same (D) Correspondence smith NZRPG in respect of the negotiation, drafting and execu1ion of the !FA and meeting minutes (c) All reports to councillors ar door WCC’s executive regarding the IDA	2008-2010
10	WCC’s documents reTating to the preparation negotiation and consideration of the ’NZTC (PC 15) — Proposed lnfirustructure De.velopment Works Programme Schedule & Stru‹::ture” (“Demarcation Schedule”), and subsequent Cost Saving Agreement 1, in or about October Zß10, (”CSA1”). Including: (a) Records of meetings and correspondence with NZRPG in respect of the Demarcation Schedu!e and subscquent CSA1 (D) Internat apd externer correspondence relevant to the incorporation at the Demarcation Sctnedule into CSA1 WCC’s assessment of the application of the WCC Code of Practice and CDP (Part 3) to CSA1.	2008 — November 2010
11	Documents and communicntions reIe«ant to the commercial purpose and / or commercial context of IFA, CSAJ, DemarCation Schedule, 1’DA1, WDA4, WDA5..	2O0B — November 2010

Schedule 2

PROJECT SuB CATEGORY		DOC #	DATE OF DOC	OESGRIPTION OF DOCUMENT	PARTIES TO DOCUMENT	NOTE5/COMMENTS
102	0o6	29 October 2010	Decision Confirmation Request ATA1051	ATA to ViJaya \/aidyanalh	Re acquiring land at 2 ffedgley Drive for stormwater
	oos “	29 October 2010	Decision Confirmation Request ATA10S4	ATA to Vjaya Veldyanalh	Re LDA
102		010	1 November 2010	Email from Denis Shear0 la Michael Sage	Oenls Sheard to Michael Sage	Email attaching ATA letters of confirmation relevantly ATA 1051, 105Z, 1013, 1054, and 1053
102		011	9 November 2010	Emall from Michael Sage to Auckland Council	Ivllchael Sage to James Copley, Michael Wood, Oenls Shea/d, Rachel Hume, Pater Beckerleg	Attaches Simpson Grierson's 8 November 2010 briefing no(e (whlch also has some ATA decisions attached)
102		012	8 November 2010 19 November 2010	Simpson Grierson b/teWn9 Note to Auckland Council of 8 November 2010	Simpson G6erson and éucklend Councll
102		013		Simpson Grierson briefing note to Auckland Council of 19 November 2010	Cover feller 1s from Michael Wood to Wendy Brandon
102		011	29 Novamber 2010	ATA file note	File nole authored by Harriet kennedy of ATA	Note advlses that AYA called Denis Sheard to ascertain status of non-confirmed decision. DS bald that Doug McKay had signed the agreements so the matter could be closed. Attached material re ATA 1055, Incl teller asking for (urther information
Z03 Z03	001	IT July 2008	Email from Setareh Masoud-Ansari	Recipient* Oenis St\eard	Records meelhg bet\veen Councll officers and NZRPG (Allan McGregor) and NZRPG‘G suggestion of a deferral of D6s.
	017	20 March 2009	Email from Jeff Murray	Recipient: Denis Sheard Copled to: Graeme Cempbell, Lesley ./enkins, Vincent Mullins, AndraW Pickering	Oiscusses DC and FC options. Raises issue of whether other cosl recovery options should be considered, rather than jusi OCS. Eg targeted rates. Raises need for discussion re approach to DC funding
203		026A	3 July 2009	Email ffom Denis She8rd	Recipient: Tony lv\IgueI Copied to: Graeme Campbell, Vincent Mullins. Renee Davies, Lesley Jenkins. Richard Thomas, Alastair Dougal	Discusses Issues of betterment and DCs.

JEC RY		DESC RIPTION OF OOCUMENT	PARTIES TO OOCUMENT	NOTESfGOMf4ENTS
		O02A		29 Nov 2010	Emall from Oenls Sheard	To Peter Beckerleg. Sam Abbott, Michael S• 9^ and Jamss Copley	Re some new pages subs(Ituied Into \IVDAs. Also discoesion of IFA and progress payments. Refers to separation be(ween bulk earthworms and building roads and associated services • important because some costs are 100% recovered under PC15 water and waste wa\er 0Cs. Reading costs are not 100°A recoverable by DCs
202	7 April 2009			Note far CEO on purchase of Westgate St	Provides ra1IonaIe fortha purchase and for dealing with NZRPG. totes that NZRPG requiras linanclal assistance.
006		30 April 2009	Memorandum to Chief Executive	From Danis Sheard	Certlty)hg that agreement withIn scopa of CE'r dete9aled authority and In oiaet for etecullon, and attaching a copy of 202.003
202		008		27 May 2009	Memorandum to Chief EXeculive	From Oenls Sheard	Updalas on Issues v/ith agreement including a difficulty In having the encumbrance registered because of opposillnn of mortgagee. Recommends that encumbrance be held unregistered.
20Z		009		23 June 2009	Letter from Simpson Grlarson	To Denis Sheard	Advises that a waiver by the Council of CHL's failure \o obtain mortgagee consent to the encumbrance does not require ATA conF‹rrnatiau.
202		012		10 July 2009	Memorandum from Maurice H1ea\l, Solicitor	Addrerree: Jocelyn Hiya, Accounts Payable Supervisor Copied to: Vicki Hossack. Project Coordinator	Internal memo requesting cheque for 86,750,000. Memo notes that copy of Council resolution 511/200a attached.
203		00s		27 July 2008	Email from Selareh Masoud-Ansari	Recipient: Denis Sheard	Records mee(ing between Council ofF<ers and NZRPG (Allan McGregor) and sets out possible basis for Council dealing with NZRPG
203 203		002		14 A^9 ^8I 20DB	Memorandum from Chris Parkes/ Rob Noahes (Itenslnglon Sy/an)	To Denis Sheard	Summarises notas taka 0y Rob Noaker at a meeting with Allan McGregor, setting out NZRPG's dfiver• and general approach
		003		hfA	LTCCP capital expenditure budget 2008/2016

PROJECY SUB CATEGORY	DOC #	DATE OF DOC	DESCRTPTION OF DOCUMENT	PARTIES YO DOCUMENT	NOTES/COMMENTS
203	017	20 March 2009	Email from Jeff Murray	Recipient: Denis Sfiieatd Copled to: Graeme Campbell, Lesley Jenklns, Vlncent Mulllns, Andrev/Pickedng	Canvasses rationale for dealing v/ith NZRPG and cost recovery options
203	021	15 April 2009	Letter from Simpson Grierson	To Andrew Pickering	Addresses Ihe Issue of whelher Council can Include a new pfoject (the extra town centre roadlng) In its LTCCP by Omendlng the draft LTCGP
203	026A	3 July 2009	Email from Dents Sheard	Recipient: Tony Miguel Copled to: Graeme Campbell, Vincent Mullins, Renee Davies, Lesley Jenkins, Richard Thomas, Alastair Dougal	Email thread re Norlhside Drive,
203	032 A	September 2009	Strategic Integration Group Decision Sheet
203	035 BA	11 December 20D9	Email from G‹aeme Campbell	To: Dents Sheerd	Advises that apart from a couple of mIIIS for earthworks Mark Gunton would like to be paid the IFA money as work Is completed.
203	036	S February 2010	Memorandum to VIJaya valdyanalh	From Denis ShBar4	Cerllfying that IFA in order for execution, and a0acllng a copy of 202032
203	o 1	s June 2010	Memorandum from Denis Sheard	To Sue 8ldrose (Acting Chlef Executive)	Recommends waiver of clause 2b of IFA. Records acceptance of recorixriendalion by Sue 8ldrose
203 203	04 3	15 June 2o14	Email from Denis Sheard	Recipient: Vijay a Vaidyanalh Copled to: Graeme Campbell, Vincent Mullins, Jeff Murray, Tony Miguel, Jeff Murray	Provides an update on progress with Westgate St, Nortnslde Drive, and the NZAPG IFA
	047	1 July 20J 0	Email from Denis Sheard	Recipient: Vijaya Valdyanath Copied to: Graeme Gampbell, Maureen Gromble	Updates Chlef Executive on Kedgley and other matters
203	048	7 July 2010	Email from Denis Sheard	Recipient: Vljaya Valdyanalh Copied to: Graeme Campbell, Maureen Cromble, Setareh Masoud-Ansari, Jaine Lovell-Gaad	Follows up ftedgley waluer issue with Chief Executive

PROJECT SUB CATEGORY			DOC //	DATE OF DOC	DESCRIPTION OF DOCUMENT	PARTIES TO DOCUMENT	NOTES/COMMENTS
203		os7	23 November 2D10	Memofandum flop Denis Sheard (Simpson Grierson)	To James Copley	Comments on chief Executives letters to NZRPG dated 28 October 2010 confirming development conlributlons f•l*•* t••ri•• •* relevant correspondence attached to memorandum)
058	29 November 2010	Emall from Denis Sheard	To: Peter Beckerleg Copied: Sam Abbott, Michael Sage, James Copley	Comments on basis of IFA
203			os9	2S January 2012	Email from Sat a Dunn	To: Michael Goodger	Attaches copy of drah section 17 PWA agreement presented 1o Mldgley in week of 5 December 201J
2o3			060	15 FebMary 2012	Emall from Anna Adams	To: Michael Goodger	Attaches materials received from NZRPC re earlier attempts to conclude a land purchase agreement between WCC and Mldglay (circa June/July 2009).
205			001	21 June 2D10	Email from Tony Miguel	To: Roger Wilson, Michael WoDd, Michael Sage	Attaches a copy of confidential ieport to Council on Infrastructure contracts and seeks comments.
205			OOB	3 August 2010	Email from Michael Wood	To: Tony Mlguel, Michelle Hutchinson,  Crtstean Monraal, /\Iastair Dougal, Denis Sheard	Attaches verslon of Draft 4 of WDA 1 with annotat\ons by Campbell Barbour
205			009	9 August 2010	Emait from Michael Wood	To: Tony Miguel. Alastair Dougal, Denfs Sheard	Attaches marked up yeFsions as Draft 5
205			010	16 August 2010	Email from Michael Weatherall (SG)	To: Michael Wood	Comments tnat agreement "shit a blt loose for my liking“ and adds some dauses.
ZOS 205	0Z0	15 Oclobar 2010	Email mom Mlchael Sage	To: Michael‘Wood	Raises issue of significance of NZAPG wanting to change 11s role and charge 8.5°X• management fee (as outlined In attached emails)
	023	6 October* 2010	Email from Penis Sheard	Yo: Michael Wood, Mlchael Sage	Comments on changes to WDA 1 and 1he basks for them.
205			026	18 October 3010	Email from Michael Wood	To: Tony Miguel	Respo» '^9 ‹^ •»'• '•structions ‹e elements to Include in WDAs, inclvdfng project management fee of 8,5°A,

PROJECT SUB GORY			DOC f/	DATE OF DOG	DESCRIPTION OF DOCUMENT	PARTIEC YO DOCUMENT	HOTES/C QMMENTS
g05		027	18 October 2010	Email (rom Mlchael Sage	To: Michael Wood	Emall exchange discussing whether Denis is happy with Tony’s instructions
205	o31A	g November 2010	Briefing note from Simpson Grierson	To: Auckland Gouncit	Advises Auckland Council on ihe re-signing of certain NORSGA documents no( approved by ATA (also filed under 20601B)
205			o31 AA	J 0 November 2010	Email from Michael Sage	To: Peter Beckerleg and others	Attaches tracked coples a( documents to be re•axecuted by AC (tracked copies of WOA 1, 4 and 5 attached)
205			032	17 November 2010	Email (rom Rachel Hume	To: Michael food	Al\atl\es copy of Council resolution 1459/20J0 dated 6 October 20J0, deIe9aIIng aulhorI\y to lie CEO to entar into
]0S			O33	18 November 2010	Email from Mtc1aeI Wood	Yo: Rachel Hume	Attaches Scope of Works for WDAs 1, 4 and TI, as well as a copy of1he Pbn Change 15 - Infrastructure Contracts Report
205			033A	29 fi)avember 2010	From Denis Gheard	To: Peter Becke/le9 Copied: Sam Abbott, Mlchael Sage, James Copley	Ou(lines changes to WDAr
205			o34	28 April 2011	Email from Sam Abbott (SG)	To: James Copley	Enclosing performance bonds relating to WDAs 1, 4 and 5 and a side (eller
205			03s	2t April 2011	Emall from James Copley	To' Sam Abbott (SG)	Confirming ACs satlsfactlon with peiYormanre bonds and slde Ie\ter
205			039	3 June 2011	File Note by Sam /\bbott	Records telephone discussion with James Gopley regarding proposed assignment and NZQPG's stance
]05			040	8 Juna 2011	Email from Sam Abbott	To: Peter Beckerleg	Attaches various materials including legal advlce on \he proposed assignment
205			041	September 2011	Email exchange, Jeff Maddren - Peter BeckerI• 9	Commentary by Oenis Sheard	Discusses pros and cons of WDA6 with NZQPG, and WDAS, IFA generally
206			009	8 September 2010	Email from Mlchael Wood	To: Mark Abbott, Cristean Monreal, Campbell Barbour Copied to: Denis Sheard, Michael Sage, Alastair Oougal	Notes that SG is to prepare what later becomes CSA I, (referred to as an "umbrella agreement”

PROJECT SUB G ATEGORY	DOC	DATE OF DOG	DESC RIPTION OF DOCUMENT	PARTIES TO DOCUMENT	NOTES/COMMENTS
206	010	10 September 2010	Email from Michael Sage	To: Mlchael Wood	Further discussion of CSA 1
206	013	27 Septembe r 2010	First draft of CSA 1	WCC, NZPF'G, CHL
206	12 October 2010	Email from Michael Saga	To: Tony Miguel, MarX Abbot, Denis Sheard, Campbell Barbour, Crlstean Monreal, k\ichaeI Wood, Alastair Dougal	A1taches second draft of CSA 1 (plus draft 4 of WOA2)
206	015	21 October 2010	Email from Fraser Rober\son (RCP)	To: Grlslean Mon‹eat. Tony Miguel, Mark Abbot, Mark Gunton, Campbell Barbour, Mlchael Sage	Attaches final demarcatlon schedule for CSA 1
206	016	26 October 2010	Email from Denis Sheard	To: Tony Miguel, Mark Abbot Copied to: Michael Sage	Emall thread re CSA 2
Z06	018	8 November 2010	Briefing note from Simpson Grierson	To: Auckland Council	Advises Auckland Council on the re-signing o/ certain NorSGA documents not approved by ATA (also filed under 205031A)
206	018A	40 November 2010	Emall from Michael Sa9e	To: Peter 8eckerleg and others	Attaches tracked coples of documents to be rwexecuted by AC (tracked copy of CSA 2 attached)
301	001	11 August 2009	Procurement Procadures	WCC manual
301	002	12 June 2009	Letter from Matthew Casey oC	To Denis Sheard	Addresses Council's obligation to pufsue betterment
301	004	13 September 2010	File note by Michael Sage	Records telephone discussion with Denis Sheard and concerns about security for NZRPG's share of Transpo\her carts
3 01	007	12 October 2010	Email from Mark Revls	To: Crlsleañ Monreal, Mlchael Sage copied to: Campbell Barbour, Mlchael Wood	Allaches WD1 and WD4 cashflows (also filed under"Budge\s")
301	008	10 March 2011	Email from Crlstean Monfeal	To: Denis Sheard, Michael Sage Copled to: James Copley	Attaches a copy of NZRPG's proposed qefformance bond
301	009	14 March z011	Email from Sam Abbott	To: Crirtean Nonreaf	Advises performance bond not in acceptable

PROJECT SUB CATEGORY	OOC #	DATE OF DOC	OES CRIPYION OF DOCUMENT	PARTIES TO OOCUMENT	NDTES/C DMMENTS
Copied la: James Copley, Denis Sheatd, Mlchael Sage
3D1	010	1 Apñl 20t1	File note by Michael Sage	Records a conversation with James Copley re payment pfocedures
011	7 April 2011	Email from Sam Abbott (SG)	To: James Coplay Cop1ed to: Mlchael Sage	Provides fo/mat advice on payment procedures
012	20 April 2011	Email from Denis Sheard	To' Michael Sage	Attaches IeIIar from RCP (Crislaan Monreal) certifying payment to NZRPG
DO]	013	31 May 2011	Email from Sam Abbott	To: James Copley Copled to: Mlchael Sage	Addresses propriety of NZRPG’s appoin\ment of contractors under W0As 1, 4 and 5
015	7 July 2011	Agenda	Auckland Council agenda (unclear what Council body the agenda was pfepafed fur)	Headed: "Procurement of Contractors under Works Development Agreements 1 & 4”
301	016	4 July 2011	Email from James Copley	To: Various	Attaches A & R Contractors not prire atlribuie lnfomiallon t^•i 'ncluded)
401	002	2008/2009?	i_TCGP Gapilal Expenditure
401	011	October 2010	PC 1b Gorl Summary
401	013	October 2010	Budget notes	Unknown	Appears \o §e a whiteboard printout, with figures added later
0j4	12 October 2010	Email from Mark Revls	To: Crlstean Monreal, Mlchael sage Copied to: Campbell Barbour, Michael Wood	Attaches W0A1 and WOA 4 cashflows (also filed under"Cost/Valve/Security")
401	016	2 November 2010	Email from Peter Jef/eries '	To: Laura While Copied to: Julie Jackson, Peter Beckerleg	subject fine of email: "NorS GA Handover: financial Management". Attaches spreadsheets.
501	OOB	1 May 2009	Email from Denis Sheard	To: CEO Copied to Graeme Campbell and others	Ralses a number of concerns, particular(y and others about NzRPG’s lack a(legal representallon whan discussing planning matters wiih Council repreren(atives and 1he risks that this might pose to Council.
601	o04	15 November 2Ot 1	Memorandum from Shaun McAuley, Legal Service ’Department; Re: Clalm	To: Stefan Naude, Mark S\vartc, Garrick Yearsley (Resource

PROJECT SUB CATEGORY	OOC #	DATE OF DOC	DESCRłPTlOłł OF DOCUME IT	PARTI53 TO DOCUMENY	NOTES/COMMENTS
for Compensation - Westgate Orive - John Long (LEX ID 2s39)	Consents); Mario ambuto, Adam Balmer (Auckland Transpon): Ronat Gerber (Risk & Assurance); John Hall, Creg Marr, Ctaes Sandsironi (Finance); M'lchaet Joesph (Mayoral Office): Cc: Heten Hargraves, Brlg)d McDonald, Wendy Brandon (Łagal Services Deparlment)
601	006	18 November 2011	Emall from Merlene Gox; Re: Fwd: Plan changa 15 Massey Nlh Developmenl	do: Wendy Brandon (Legal Services Department), Phił Wilson
601	007	2 December 2011	Łetter from Chńs Moore/ Anna Adauis (Meredllh Connell): Re: NorSGA Massey North/Weslgałe revlew	To: counclllor ł"-letcher	Reqvesłłng tlme to meet with Gouncilfor £letcher to hear her con¢ems and recelve any other lnformatłon
601	Q09	2o February 2012	Email from Thaunls Van Schalkwyk (Auckland Transport); Re: NorSGA projed - concerns	To: Chfis Moore and Kevin Doherty (Auckland Transport)	Oonlairls sutfounding admlnlslrallve emalls taa