Wong v Logie

[2025] NZHC 2286

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-2278

[2025] NZHC 2286

BETWEEN

KIM MAREE WONG and VICTOR WONG

Plaintiffs

AND

GARETH STUART LOGIE and MEI SIU

First Defendants

LIN SHENG HUO
Second Defendant

YITAO LI
Third Defendant

AUCKLAND COUNCIL

Fourth Defendant

MASTER BUILD SERVICES LIMITED

(Discontinued) Fifth Defendant

Hearing:

On the papers

Counsel:

C R Andrews for Plaintiffs

B M Easton for First Defendants

Judgment:

13 August 2025

JUDGMENT OF LANG J

[costs]

This judgment was delivered by Justice Lang On 13 August 2025 at 10.00 am

Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:

McVeagh Fleming, Auckland Grimshaw & Co, Auckland

WONG v LOGIE [2025] NZHC 2286 [13 August 2025]

[1]                 On 8 July 2025, I was scheduled to hear an application by the plaintiffs seeking orders requiring the first defendants to provide further and better discovery. Counsel for both parties filed a joint memorandum on 30 June 2025 advising that the plaintiffs discontinued the application and that both parties sought vacation of the fixture. I made orders accordingly.

[2]                 The parties have been unable to resolve the issue of costs on the application. I am therefore required to determine that issue on the basis of the memoranda that have been filed.

Background

[3]                 On 26 August 2024, I made an order requiring the parties to complete standard discovery no later than 2 October 2024. Subsequently, on 19 November 2024, I directed that any interlocutory applications arising out of discovery and inspection were to be filed and served no later than 31 January 2025.

[4]                 On 26 September 2024, counsel for the plaintiffs wrote to the first defendants’ counsel setting out the categories of documents the plaintiffs considered were likely to be relevant to the proceeding and would therefore be included in the first defendants’ affidavit of documents.

[5]                 The first defendants subsequently filed and served their affidavit of documents on 11 October 2024. Counsel for the plaintiffs took the view that the affidavit was deficient in several respects. They therefore wrote to counsel for the first defendants on 27 November 2024 setting out the documents they had expected would be included in the first defendants’ affidavit of documents.

[6]                 On 20 January 2025, counsel for the first defendants provided a detailed response to each of the categories of documents sought by the plaintiffs in their counsel’s letter dated 26 September 2024. They also explained why they considered the first defendants had fully discharged their discovery obligations. However, to resolve the matter on a pragmatic basis, the first defendants made enquiries from third parties as to whether they held documents sought by the plaintiffs. These comprised

documents held by a real estate agency involved in the transactions that are the subject of this proceeding and documents held by their conveyancing solicitors.

[7]                 Apparently not satisfied with this response, the plaintiffs filed an application seeking orders for further and better discovery on 31 January 2025. In doing so they complied with the directions given by the Court on 19 November 2024 but without replying to the letter from counsel for the first defendants dated 20 January 2025. The first defendants responded to the application by filing and serving a notice of opposition and supporting affidavit.

[8]                 On 15 February and 12 March 2025, the real estate agency and conveyancing solicitors provided further documents to the first defendants. The first defendants then filed and served a supplementary affidavit of documents on 17 March 2025.

Decision

[9]                 Arguments for and against costs run both ways. The plaintiffs are entitled to argue that they were justified in filing the application because they had concerns about the adequacy of the first defendants’ discovery and were required to comply with the timetable directions made by the Court.

[10]              On the other hand, it now transpires that the first defendants had largely complied with their discovery obligations prior to the point at which the plaintiffs elected to file their application on 31 January 2025. There is also an issue as to how much additional relevant documentation the plaintiffs received from the first defendants after they filed the application. It is not possible to resolve that issue in the present context.

[11]              I consider the plaintiffs should have considered the option of seeking a variation to the existing timetable directions to extend the time within which they were required to file any application for further and better discovery. This could have been done by filing a memorandum rather than a formal application. In all likelihood the first defendants would have consented to this. That option would have enabled the plaintiffs to engage in constructive discussions about the matters raised on behalf of the first defendants in the letter dated 20 January 2025.

[12]              Taking these matters into account, I am not prepared to make an order of costs in favour of the plaintiffs. Costs on the application will therefore lie where they fall.

Lang J