Biggs Biggs [2018] NZHC 1592 (29 June 2018)

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BETWEEN	SOPHIE ANNABELLE BIGGS Plaintiff
AND	STEPHEN TIMOTHY BIGGS Defendant
AND	STEPHEN TIMOTHY BIGGS as trustee for the TIM BIGGS FAMILY TRUST Second Defendant
AND	LAGUNA BAY CAPITAL PTY LIMITED as trustee for the LAGUNA BAY CAPITAL TRADING TRUST Third Defendant
AND	LB MANAGEMENT PTY LIMITED as trustee for the LAGUNA BAY CAPITAL MT TRUST _{Fourth Defendant}

Hearing:	26-28 March 2018
Appearances:	D A T Chambers QC and E M Eggleston for the Plaintiff M J McCartney QC and S H Jacobson for the Defendant J F Anderson QC for the Second, Third and Fourth Defendants
_Judgment:	_{29 June 2018}

INTRODUCTION ............................................................................................... [1] SUMMARY OF DECISIONS .......................................................................... [12] Discovery ............................................................................................................ [22] Confidentiality ................................................................................................... [28] Sale of the home / interim distribution............................................................ [30] Anonymisation of parties’ names..................................................................... [34] Service of the proceedings/representation ...................................................... [36] THE CURRENT STATE OF THE PLEADINGS .......................................... [37] Ms Biggs’ claim.................................................................................................. [37] The trustees’ pleadings ..................................................................................... [46] Mr Biggs’ pleadings........................................................................................... [47] Interrogatories and further particulars .......................................................... [50] Observations as to the pleadings...................................................................... [52] THE COMMENCEMENT OF PROCEEDINGS .......................................... [58] THE APPLICATIONS FOR DISCOVERY AND HOW PROCEEDINGS PROGRESSED.................................................................................................. [78] MY ASSESSMENT AS TO HOW MR BIGGS HAS APPROACHED

THESE PROCEEDINGS ............................................................................... [138] MS BIGGS’ APPLICATION FOR FURTHER DISCOVERY AGAINST TRUSTEE DEFENDANTS ............................................................................ [144] Category 4 – correspondence to and from trustees ...................................... [151]

the trusts or beneficiaries of the trusts .......................................... [151] (a) Disposi ti on s to t rust ees .........................................................[157] (b) Value of Mr Biggs ' w ork for t rust ees ..........................................[161] (c) Propos ed dist ribut ions ...........................................................[166] (d) Use of t rust assets ...............................................................[168] (e) C ont ribut ions of Mrs Biggs .....................................................[169] (f) Purpos e of t rust s ..................................................................[172]

Category 7 – further correspondence and distribution information .......... [177]

Category 9 – legal advice ................................................................................ [183]

Category 10 – solicitors’ files.......................................................................... [191] Category 11 – general discovery .................................................................... [200] Conclusion as to Ms Biggs’ application for orders for discovery against

trustee defendants ........................................................................................... [201] MS BIGGS’ APPLICATION FOR DISCOVERY AGAINST MR BIGGS[202] Summary of submissions ................................................................................ [206] Discovery sought as to Laguna Pastoral ....................................................... [211] Other discovery required by Mr Lyne........................................................... [263]

- Email correspondence .............................................................[264]

- Passport and travel documents...................................................[264]

- Tax returns ......................................................................... [265]

- Tax return work papers ........................................................... [265]

- Accounting work papers .......................................................... [266]

- Employment contracts............................................................. [267]

- Remuneration benefits ........................................................... [267]

- Income from overseas portfolio ................................................. [269]

- General ledger extracts ........................................................... [271]

- Inter-entity transactions .......................................................... [271]

- Loan accounts ......................................................................[271]

- General ledgers .................................................................... [271]

- Transactions to which Mr Biggs is a party .................................... [271]

- Trust distributions to Mr Biggs .................................................. [274]

- Laguna Sierra Pty Ltd ............................................................ [276]

- US tax returns ...................................................................... [276]

- Park Road Partnership ........................................................... [278]

- Bank statements ................................................................... [279]

- Credit card statements ............................................................ [279]

- Sopris Holdings Ltd ............................................................... [282]

- Standard discovery ................................................................[283] Overall conclusions as to Mr Lyne’s requirements for further discovery . [287] MR BIGGS’ APPLICATION FOR DISCOVERY ...................................... [297] CONFIDENTIALITY..................................................................................... [320] MS BIGGS’ APPLICATION FOR ORDERS OVER THE SALE OF THE QUEENSTOWN PROPERTY ....................................................................... [362]

INFORMATION ............................................................................................. [412] MR BIGGS’ APPLICATION FOR FURTHER PARTICULARS/ORDER REQUIRING ANSWER TO INTERROGATORIES .................................. [440] APPLICATION FOR DIRECTIONS AS TO SERVICE ............................ [441] COSTS.............................................................................................................. [449]

[2] In proceedings that have been transferred from the Family Court to the High Court, Ms Biggs seeks half of the couple’s relationship property and, through a range of claims, seeks a share of the wealth which she says Mr Biggs has available to him through trusts and companies that she says he controls.

[3] Ms Biggs’ case is that, during the relationship, she devoted herself to the family and to supporting Mr Biggs while he worked in the businesses run in the names of trusts and companies controlled by him.

[4] Mr Biggs says he was wealthy when the relationship began. He says, whatever his interest is in these companies and trusts, it is not relationship property and Ms Biggs has no claim against them or on account of them. He has filed a counterclaim.

Mr Biggs contends that, because Ms Biggs is seeking a share of the substantial wealth he had before their relationship began (including properties he owns in Australia and Argentina), this is a case where there should not be equal sharing of relationship property.

[5] Proceedings were filed in the Family Court in April 2016 under the Property (Relationships) Act 1976 (PRA). More than two years later, Ms Biggs has incurred over $300,000 in legal and accounting costs. Mr Biggs’ costs are also likely to be high.

(a) the Court to order an interim distribution to her of half the proceeds from the sale of the family home (the Queenstown property);

(b) for Mr Biggs’ share of the proceeds to be retained in a trust account until all claims have been resolved;

(c) for either an interim distribution to her of $400,000 or that Mr Biggs pay her legal and accounting costs as they are incurred; and

[7] Mr Biggs and the trustee defendants ask the Court to ensure the confidentiality of documents that will be provided to Ms Biggs’ advisers. Mr Biggs seeks orders suppressing the parties’ names, orders for discovery, and directions that the settlors and beneficiaries of the trusts be served with the proceedings.

2017 before Nicholas Davidson J. For reasons discussed in his interim judgment of

12 October 2017, Davidson J held he could not finally decide a number of the issues that were put before him.¹It has been necessary for me to revisit those issues.

[9] Ms Chambers characterises Mr Biggs as someone who has provided misleading information and someone who is simply trying to wear down Ms Biggs to force her to accept an unjust settlement, in the same way as it was suggested a husband had been doing in SM v LFDB.²A recurring theme in affidavits sworn by Ms Biggs and her accounting expert has been that Mr Biggs has been obstructive in these proceedings.

[10] Determining the various applications before me has required me to assess how the parties have approached the proceedings and whether the orders they are seeking are needed to achieve a proper division of property under the PRA. In doing so, I have had to consider some 2,300 pages of documents in the 10 case bundles that were before the Court both in March 2017 and again in March 2018.

[11] The course of these proceedings well illustrates how, in the pursuit of claims in a particular way, there can be scant recognition of the principle that questions arising under s 1N(d) PRA about relationship property should be resolved as inexpensively,

[12] When the parties first began negotiations over the settlement of relationship property claims, the background was such that Ms Biggs and her advisers should not have assumed Mr Biggs would refuse to cooperate or resist providing information in a way that would make it difficult to resolve Ms Biggs’ claims.

[13] Early on, Ms Biggs’ advisers, particularly the accountant Mr Lyne, insisted on extensive and detailed disclosure of documents and information as to the way Mr Biggs, and trusts and companies with which he was associated, had conducted their affairs and carried on business. Mr Lyne required a level of documentation that indicated he wanted to know not just what the results had been of that activity, as apparent from annual accounts and tax returns, but also to be able to audit, in considerable detail, how the apparent end results had been reached.

[14] Given the way Mr Biggs was cooperating in providing information, Mr Lyne’s requirements were excessive and disproportionate to what was reasonably required to allow the parties to advance their cases. The discovery he sought was excessive, having regard to the principles governing discovery in relationship property proceedings.

[15] The insistence on satisfaction of Mr Lyne’s requirements has led to delay and significant costs that could otherwise have been avoided. It has made resolution of the proceedings more difficult. It resulted in the parties not taking advantage of the potential for settlement through a private mediation. It has led to an intensely adversarial approach to the resolution of claims, a further deterioration in the parties’ relationship, and a raft of interlocutory applications from both parties. These have all significantly added to the costs which both parties must be incurring.

[16] A feature of the litigation has been an insistence on behalf of Ms Biggs that Mr Biggs effectively fund the very high costs Ms Biggs was incurring in pursuing these proceedings in this manner.

[17] The parties should have been able to benefit from accounting experts engaging cooperatively between themselves and with other professionals such as the chartered

accountant who prepared annual accounts for relevant companies, so as to avoid unnecessary delay and cost in obtaining the information which the experts reasonably required to assist, as expert witnesses, in a relationship property context.

[18] Throughout the proceedings, Mr Biggs has continued to provide detailed financial information and associated documentation in a manner which indicated he wanted to see issues resolved on an informed basis.

[19] Mr Biggs did refuse to provide certain documents on the basis they were confidential to a company with which he was involved in an equal partnership situation. Such confidentiality concerns did not, of themselves, necessarily justify non-disclosure but his concerns were genuine. His refusal to provide information or documents on those grounds was not motivated by an intent to be simply obstructive as far as Ms Biggs’ claims are concerned.

[20] This is not a case of a husband trying, through attrition, to use his financially advantaged position to pressure a claimant to accept what might be less than a just legal entitlement.

[21] Mr Biggs has however, with his applications this year, taken steps in the proceedings that were not essential to resolving matters. These have led to both parties incurring costs with counsel that would not have been required if he and his counsel were doing what they could to progress the proceedings in a way that recognised s

[22] The discovery provided to date had been extensive and sufficient for Ms Biggs to determine the scope of the claims she wished to make. Discovery properly addressed the matters that were at issue in the proceedings. There has been a commitment to providing documents that will assist in the valuation of the business with which Mr Biggs had been primarily involved during the marriage. The further particular discovery Mr Lyne seeks, through the application before the Court, is oppressive and disproportionate. The application for further discovery against Mr Biggs is declined.

[23] The trustee defendants had only recently been joined in the proceedings. Ms Biggs sought discovery against them as to 11 categories of documents. The trustees had agreed to provide documents as to six of those categories. The discovery sought, in relation to the remaining five categories, is oppressive and disproportionate. The application for discovery as to those categories is declined. No orders are made as to discovery of the agreed categories but that is on the basis such discovery will occur. Leave is reserved for Ms Biggs to apply for further discovery if this does not happen.

[24] Discovery has been sought of documents which are the property of a company with which Mr Biggs was involved during the marriage. Discovery was not sought by way of a non-party application. It is not clear that Mr Biggs’ status as a director, or as the discretionary beneficiary of a trust that has a 50 per cent shareholding in the company, would give him control of the sort that would require him to make discovery. A significant amount of information, including annual accounts of the company, has been made available. The company has agreed to make further documents available provided confidentiality of those documents is preserved. Further discovery from Mr Biggs, in the detail and at the level sought by Mr Lyne, would be oppressive and disproportionate because of the potential impact such discovery could have on the company’s business and the relationship between Mr Biggs and the other partner.

[25] The application, with regard to discovery of such documents, is declined but this is on the basis there will be discovery of documents from the company to the extent already agreed. Leave is reserved to seek non-party discovery should that not happen.

[26] With his initial discovery application, Mr Biggs sought discovery from Ms Biggs as to 12 categories of documents. Ms Biggs agreed to file an affidavit listing documents for 11 of those categories and eventually did so. Mr Biggs then sought particular discovery as to the one category that was in dispute. Through discovery, he sought disclosure as to if and when Ms Biggs had obtained documents not in the public arena but relating to the business with which he was involved, and if and when Ms Biggs provided those documents to solicitors before final separation. It was suggested the information obtained might be relevant to potential costs orders, an assessment of her contributions to the relationship, and her credibility.

[27] Discovery was likely to be of marginal relevance to the real issues between the parties and as to any assessment of contributions to the marriage. Discovery, with the particulars as sought, would be onerous and oppressive in the sense of requiring Ms Biggs to disclose, in some detail, information about a solicitor-client relationship which is confidential. Mr Biggs’ application for this further discovery is declined.

[28] This judgment sets out the terms on which the agreed business documents of the company are to be provided so as to protect the confidentiality of those documents and the information in them. The information in the documents may be discussed with Ms Biggs and her brother who is experienced in business and is providing support and advice for her in the proceedings. They will not however be entitled to retain copies of the documents. The documents or extracts from them may be referred to or put before the Court as the proceedings continue. This is to be done in a way which ensures they can be kept separate from other documents so that their circulation is limited. Ms Biggs and her brother will not have copies of those parts of the affidavits but are entitled to see those documents at Mr Lyne’s office if they wish.

[29] The trustee defendants say an affidavit from Mr Lyne, referring to a confidential document, was released to Ms Biggs in breach of confidentiality directions, in breach of an undertaking Mr Lyne had given and in breach of an express condition on which the document had been provided. The trustee defendants sought an order for costs to recognise this. Ms Biggs’ solicitor took steps promptly to rectify what had occurred. The application is refused.

[30] The parties agree that their home is to be sold. It is on the market. This judgment records mostly agreed terms governing the process of sale and payments that are to be made from the proceeds of sale.

[31] To the extent there is an interim distribution from the proceeds of sale, the distribution should be to the parties equally. There is uncertainty as to when a sale will occur and what the net proceeds will be. There is still to be an accounting between

the parties over the way a finance facility secured over the property has been used since separation. There may have to be an accounting with regard to costs once the proceedings are resolved. In these circumstances, the parties are each to receive

$1,500,000 from the net proceeds of sale once settlement of the sale has taken place.

[32] The balance is to be retained in a solicitors’ trust account pending the resolution of the proceedings. Leave is reserved to the parties to seek a further distribution when a sale has been obtained and the precise balance available for distribution between the parties has become clear.

[33] Mr Biggs is ordered to pay Ms Biggs $200,000 within two weeks as an interim distribution of relationship property. He is to be credited with payment of that amount against any sum to which Ms Biggs is ultimately entitled on resolution of all claims. If the home sells before claims have been resolved, that $200,000 is to be paid to Mr Biggs from the $1.5 million that Ms Biggs is entitled to from the sale of the home. The requirement on her to pay that amount to Mr Biggs is without prejudice to any order that might ultimately be made over costs. The application for an interim distribution in excess of this is declined.

[34] Mr Biggs sought suppression of the parties’ names through anonymisation. In the judgment, there is reference to the parties having a child who is under the age of

18. Mr Biggs argued that s 35A PRA and ss 11B-11D Family Court Act 1980 thus apply, and there could be no publication of the parents’ names without leave.

[35] However, the judgment is not about the child. Her privacy interests are unlikely to be affected to her detriment. The principle of open justice is important with proceedings such as these. Leave is granted for there to be publication of the parties’ names and any identifying information, as defined in s 11C Family Courts Act. There is to be no publication of the child’s name.

[36] The High Court Rules orders did not require Ms Biggs to seek directions in this regard. No such directions are made.

[37] On 4 December 2017, Ms Biggs filed a second amended statement of claim. At the same time, she filed an application to join further parties in their capacity as trustees. By consent, an order joining the trustees was made on 24 January 2018. She filed a third amended statement of claim on 23 February 2018. Before me, the trustees of the three trusts were separately represented by Ms Anderson QC.³

[38] In an appendix to his affidavit of 6 September 2016, Ms Biggs’ accountant, Mr

Lyne, provided a diagram showing the various entities with which Mr Biggs was involved and how they were related. I reproduce that below.

³In this judgment, I refer to the Laguna Bay Capital Trading Trust as “the Trading Trust”.

[39] In her statement of claim, Ms Biggs asserts that relationship property comprises:

(d) monies owing to Mr Biggs by the Trading Trust – $11,672,610, or increase in value during relationship;⁴

[40] In her claim, Ms Biggs refers to nine entities as an amalgamation and as corporate structures/trusts. She claims that, during the relationship, Mr Biggs’ separate property and corporate structures/trusts increased in value and the income and gains from these entities were attributable wholly or in part to the application of

_{relationship property. She asserts Mr Biggs’ salary and income
was applied to the}

⁴Ms Biggs claims that, through intermingling, the amount owing to Mr Biggs on that loan account cannot be identified as the debt due to him from that trust at the beginning of the relationship and, in the alternative, the loan account was acquired for the common use or benefit of the parties.

⁵Ms Biggs claims these debts in (e) and (f) were relationship property, having been acquired during the relationship or, in the alternative, the credit was acquired for the common use or benefit of the

separate property/corporate structures/trusts and asserts he was not paid a market remuneration for the period 30 June 2009 to 30 June 2016, the shortfall of which benefited the corporate structures/trusts.

[41] Ms Biggs also asserts the separate property and the corporate structures/trusts benefited from the proceeds of Ms Biggs’ Queenstown apartment and from the way Mr Biggs went without interest on loans he made to the trusts. She asserts that the increase in value of Mr Biggs’ separate property/corporate structures/trusts and income, and gains from them, was attributable wholly or, at least in part, through the direct and indirect support she provided to Mr Biggs as a wife and mother, and in his business dealings.

(a) Section 15 PRA, for a capital sum by reason of a significant difference in income and living standards which she says are attributable to the effect of the divisions and functions within the marriage while the parties were together;

(b) Section 17 PRA, for a payment from Mr Biggs on the basis his interest in separate property/corporate structures/trusts was sustained by the application of relationship property or her actions;

(c) Section 20E PRA, for full compensation for the reduction in Mr Biggs’ separate property debts, through the use of relationship property, in the sum of $148,194;

(d) Section 44 PRA, for an unspecified amount but subject to discovery on the basis that, during the relationship, Mr Biggs made dispositions of relationship property to three trusts to defeat the rights and claims of Ms Biggs;

(e) Section 44C PRA, for adjustment compensation on the basis Mr Biggs made dispositions of relationship property to the trusts that had the effect of defeating Ms Biggs’ claims and rights; and

(f) Section 32 PRA, for retrospective and prospective maintenance on the basis that, during the separation and while she was living in the Queenstown property, her monthly expenses were $20,650 and Mr Biggs had been paying only interim maintenance of $12,000 per month from 1

[43] Ms Biggs claims that, during the course of the marriage, Mr Biggs made post- nuptial settlements for the benefit of himself, her and their child. She claims under s

182 Family Proceedings Act 1980 that, with the dissolution of the marriage, the Court should make orders for the benefit of the child of the marriage and for her benefit.

[44] C onst ructi ve trust – Ms Biggs asserts that she and Mr Biggs, by their financial and non-financial contributions, both direct and indirect, assisted in the acquisition, improvement and maintenance of the trusts. Ms Biggs says that assistance was provided with the reasonable expectation that they would beneficially own the assets and liabilities of the trusts. Accordingly, the trusts should reasonably yield an interest to her.

[45] Ms Biggs asserts that Mr Biggs was the de facto settlor of the Trading Trust and the Tim Biggs Family Trust and that, on a true construction of the deeds, Mr Biggs was the beneficial owner of all the assets in the trusts so that they should be attributed

[46] The trustees admit many of the allegations that are made in the statement of claim as to the terms of the trusts, the provisions for appointer, the potential or actual beneficiaries and other matters but plead all terms of the trust deeds in full. They assert that the trust deeds are governed by and are to be construed in accordance with the laws of Queensland, Australia. They deny the pleadings of Ms Biggs on which she makes a s 9A PRA claim in respect of the increase in value of Mr Biggs’ interests in the trusts. With particulars, they deny she has an entitlement against the trusts as a result of the various claims she has made.

[47] As to the claims against the trusts, Mr Biggs’ pleadings in his statement of defence are similar to those now filed for the trustees. He provides detailed responses about the various companies and trusts Ms Biggs referred to in her statement of claim and about the transactions she had mentioned. He denies she has any entitlement against trust property or against him in respect of property owned by the trusts.

(d) balances in bank accounts in the name of the parties at the end of the relationship.

[49] In his last statement of defence, Mr Biggs also filed a counterclaim that, under s 13 PRA, this is a situation where equal sharing would be repugnant to justice and the relationship property should be divided so as to apportion 85 per cent to him and 15 per cent to Ms Biggs.

[50] Mr Biggs issued a notice to answer interrogatories on 15 January 2018. The questions related to the circumstances in which Ms Biggs’ employment ended in the years prior to their relationship, the level of debt she had with credit cards and tax at the beginning of the relationship, a course of study she had pursued during the relationship, whether or not she suffered from particular health problems during the relationship, the cost of their wedding and whether she had seen lawyers in the period the parties were apart between the two relationships. Ms Biggs answered them in an affidavit of 16 March 2018.

[51] In that affidavit, Ms Biggs also responded in detail to a notice requiring further particulars of claims made and submissions from Mr Biggs’ counsel dated 7 March

2018 seeking particulars as to her contributions as a homemaker, contributions to the daughter and the way in which Ms Biggs claimed these contributions assisted in the development or growth of the trusts, the trusts’ assets or the corporate entities.

[52] Ms Biggs’ claim uses every legal device or strategy that might be technically available to obtain a share of the wealth in trusts associated with Mr Biggs. The detail in her claim illustrates the level of information which is currently available to her that

is relevant and material to the claims and counterclaims that have been made in these proceedings. The way she answered interrogatories indicates she had a good knowledge of how he was involved in business and the time and effort this required of him.

[53] The information that Ms Biggs provided in answering interrogatories was of the kind that it would be expected both parties to a marriage would normally already have, at least in a general sense. It was also information which, given the pleadings, the parties and counsel should have expected to be provided well before trial through the conventional filing of affidavits or, in this instance, the service of briefs of evidence.⁶

[54] I note that, as an illustration of how the parties and their advisers are approaching this litigation, associated with Ms Biggs’ affidavit of 16 March 2018 were three bundles comprising some 644 pages.

[55] Mr Biggs’ counterclaim, his later issuing of interrogatories, and applications for discovery illustrate how an intensely adversarial approach to proceedings can cause the parties to litigation to adopt extreme positions which will ultimately make it

⁷I acknowledge that, in the Supreme Court, Glazebrook J has said that, if an applicant, through s

182 Family Proceedings Act, seeks a distribution to her of wealth in a trust which would, but for

[56] Mr Biggs’ statement of defence deals specifically with debits and credits against the parties’ joint bank accounts during the relationship, and credits and debits against accounts for the trusts and companies to the extent those transactions were referred to specifically in the statement of claim. In the statement of defence, explanations are given as to how those transactions were funded and what they were used for in ways that suggest Mr Biggs and his advisers had specific documentation and information available to support what was being said. It is not a situation where Mr Biggs appears to be simply stone-walling or being obstructive in responding to assertions made by or on behalf of Ms Biggs.

[57] The pleadings as to the parties’ respective contributions to the relationship indicate Mr and Ms Biggs each have a detailed knowledge of what happened during their relationship to support the allegations and counter-allegations which each makes. These issues commonly arise in relationship property cases which legal advisers and, if necessary, Judges have to deal with in resolving claims under the PRA. It is usually not difficult for lawyers who are objectively assessing the merits of the parties’ positions, and for a Judge if that is required, to carefully consider the detailed evidence which has been given by each party. It is not usually a process that will be significantly assisted by the minute examination of significant volumes of documents.

[58] With a separation, the way in which parties and their advisers seek to advance negotiations over relationship property can be crucial in determining whether claims are dealt with fairly and constructively, and at the least cost to the parties. A more adversarial approach may make litigation, with its costs and delays, inevitable. Where litigation is accompanied by acrimony and distrust, the continuing dispute may well have a long term and destructive impact on the relationships which one or both parents may have with their children.

[59] There are many situations, even when there is considerable wealth, when at least one but often both parties want to see claims resolved fairly and as inexpensively

the trust, have been separate property, that could justify a departure from equal sharing under s 13

as possible. They may start with some assumptions as to the scope of the wealth against which a claim might be made. A party’s initial assumption in this regard might be mistaken but nevertheless it will be apparent, from the way that a party and his or her advisers deal with the other party, that they want to deal with matters constructively, and are willing to provide information which will ensure both parties are well enough informed to constructively discuss and resolve claims.

[60] In such a situation, the parties and, just as importantly, their advisers should engage with each other with the expectation that there will be cooperation (at the least cost to their clients) so as to achieve a just outcome with regard to legal entitlements.

[61] The reported cases show, however, that there will be instances where either one or both parties are intransigent, closed-minded and so dismissive of the other’s potential claims or entitlement (or so unwilling to accept the realistic limits on their entitlement or claims) that there is no alternative but to have matters resolved through Court proceedings. However, even in this latter situation, in advising clients as to what would be in their best interests, counsel obviously have a responsibility to try and ensure that such proceedings are resolved as inexpensively and efficiently as is achievable, commensurate with the just resolution of what is in dispute.

[62] In New Zealand, the ownership of assets through trusts and the building up of wealth during a marriage but within trusts has often made it more difficult for parties, usually wives, to share in the wealth that has been built up during a relationship.

[63] Here, much of the wealth at issue, both from before the relationship and from during the relationship, is owned by trusts. It would not, however, have been reasonable in the circumstances of this case to assume that this must have been done to limit the extent of any relationship property claim that Ms Biggs might have.

[64] The Tim Biggs Family Trust and the Trading Trust were both established well before Mr and Ms Biggs began their relationship in January 2010. Given the extensive investment and entrepreneurial business activities he has been involved in, Mr Biggs’ use of trusts could well have been for sound risk protection reasons. In Australia, where Mr and Ms Biggs were based, it has been held that assets of a discretionary trust

can form part of the relationship property pool.⁸The fact property was owned by trusts was therefore not going to create the barrier to relationship property claims that it can in New Zealand. Mr Biggs had been married before but he had not attempted to protect himself against any relationship property claim in the future through insisting on a prenuptial agreement. During the relationship, he had not taken particular care to avoid owning property in his own name. Because of the tax benefits from doing so, capital gains from pre-existing investments for the Trading Trust had been allocated to Mr Biggs personally through significant credits to him on his loan account with the trust. During the relationship, he had been able to draw down some $7 million against his loan account with the Trading Trust, most of which was invested in the Queenstown property, title to which was held in the name of Ms Biggs alone.

[65] Notwithstanding a period of separation, to take advantage of rises on the New Zealand stock exchange in early 2014, funds were advanced against his loan account by the Trading Trust to Mr Biggs to make investments. The investments were made in Ms Biggs’ name and were short term. The gross proceeds of sale were then applied to the construction costs of the home.

[66] Soon after the parties separated, Mr Biggs suggested that, in some way, they should involve a neutral third party to assist them in resolving property claims.

[67] In her narrative affidavit of 14 April 2016, in support of her relationship property application, Ms Biggs says that on 11 February 2016 Mr Biggs sent her a schedule of assets in their relationship as he saw them. (Mr Biggs was later to object to her reference to them in an affidavit saying that the summary had been provided to her to assist in achieving a settlement and was provided without prejudice. In her affidavit of 24 June 2016, Ms Biggs said that Mr Biggs’ outline of all assets was provided to her with “no strings” attached.)

[68] That summary was headed “S T Biggs and Laguna Pool”. It was in a very general form. It detailed bank accounts, motor vehicles, the T Biggs superannuation fund to which both Mr and Ms Biggs had made contributions personally, property in

_{Australia and New Zealand, and a 50 per cent interest in “LB
Agriculture”. It referred}

to all the investments under the heading “S T Biggs and Laguna Pool” as having a value of nearly $25 million. On the next page, there was a reference to a tax debt for the LB Group FY 15 of $225,000.

[69] The fact Mr Biggs provided this summary was at least a tangible indication that he acknowledged Ms Biggs had to be informed as to the wealth with which he was associated. His providing this information, for the purpose of facilitating some sort of settlement discussion, also indicated that he understood he would not be able to unilaterally dictate a settlement. What he did should have objectively been seen as the first move by someone who wanted to reach a settlement and it recognised he would have to provide information to achieve this.

[70] That was relevant background to the commencement of proceedings and the applications which were soon made for discovery.

[71] In April 2016, Ms Biggs filed an application under the PRA and an application for interim maintenance.

[72] In her affidavit of 14 April 2016, in support of the application for interim maintenance in the Family Court at Invercargill, Ms Biggs said she was solely reliant on Mr Biggs to provide funds and had no independent means of supporting herself. However, the next paragraph said there was a Westpac debt facility secured over the Queenstown property for $500,000. Ms Biggs said it was not her intention to draw on that facility when “Mr Biggs has sufficient means” to support her.

[73] Ms Biggs said that over the last five years Mr Biggs had devoted the majority of his efforts towards building his Laguna Bay Pastoral business.⁹She said, indirectly and through a trust, he held a 50 per cent shareholding which was established during the relationship and it effectively owned and managed large farms in Australia on behalf of domestic and overseas investors. With her affidavit, she produced information from the company’s website which summarised the services it was offering as to the acquisition and management of assets. She said in her affidavit that

_{she understood that the business was “yet to generate any
significant revenue but Tim}

⁹In this judgment, I refer to Laguna Bay Pastoral Company Pty Ltd as “Laguna Pastoral”.

recently told me that he believes it is about to”. She believed this was most likely “our most valuable asset, with the highest cash flow potential”.

[74] Mr Biggs responded in an affidavit of 24 June 2016. Mr Biggs said he and Ms Biggs agreed when they separated they would cooperate respectfully and in good faith to achieve a fair division of the property of their relationship. He said that, without notice to him, Ms Biggs had elected to instruct legal representatives and file proceedings. He said that his lawyers were willing to meet with Ms Biggs’ lawyers and his lawyers had instructions to progress a division of property but, if she sought to make a claim for trust property, then settlement would be difficult.

[75] In his affidavit of 24 June 2016, Mr Biggs provided detailed information about real estate he owned overseas, details of the Tim Biggs Superannuation Fund to which both he and Ms Biggs had contributed, and information about the various entities with which he was associated.

October 2013. He provided a copy of the constitution and described how it holds various unit trusts with unit trust holders (eight investors) who each make investments. He provided the first set of financial accounts for the year ending 30 June 2014 which he said reflected “the fledgling business” and said there was an agreement between the Trading Trust interests and Tim McGavin interests which included pre-emptive rights.

[77] Mr Biggs produced his tax returns for the years from 2009 to 2014. He referred to the fact that, under Australian law, capital gains income in a trust had to be included in a tax return and was attributed to the trustee, but said that he had not in fact received those gains.

[78] Ms Biggs’ requirements for discovery in the context of these proceedings were advanced through correspondence from Mr Lyne, an accountant instructed by Ms

Biggs’ solicitors. Mr Lyne has significant experience in relationship property and associated litigation.

[79] Central to Ms Biggs’ discovery application was Ms Chambers’ submission that, given Mr Lyne’s experience, if Mr Lyne regarded the discovery of certain documents was necessary, then the Court should accept this must be so. The reasonableness of his requests, however, has to be assessed against the principles which the courts say should be applied in dealing with issues of discovery in a relationship property context.

[80] Before both Davidson J and myself, counsel for both parties accepted as appropriate Kós J’s articulation of the principles governing discovery in relationship property litigation:¹⁰

(a) A robust approach should be taken to discovery consistent with the purposes and principles of the Act: the need for just division, but also inexpensive and efficient access to justice.

(d) The scope of discovery should therefore be tailored to the need of the Court to dispose, justly and efficiently, of relationship property issues under the Act.

(e) More substantial discovery may well be ordered by the Court where it has reason to believe that a party has concealed information or otherwise sought to mislead either the other party or the Court as to the scope of relationship property. But even here, the scope of discovery should be no more than is required for the Court to fairly and justly determine relationship property rights. It is just that in such a situation, more is likely to be required to meet that requirement.

[81] The observation which Kós J made at (e) illustrates why it is important that, when dealing with discovery, courts and counsel should consider carefully the approach which each party is taking as to potential settlement or resolution of claims.

[82] Importantly, the discovery sought must be relevant to the issues in the proceeding.¹¹

¹¹J v P [2013] NZHC 557 at [21]; New Zealand Rail Ltd v Port Melbourne New Zealand Ltd (CA

The law relating to relationship property disputes requires total disclosure and cooperation between people who are parties in such litigation. Section 1N(d) of the Act provides that “questions arising under this Act about relationship property should be resolved as inexpensively, simply and speedily as is consistent with justice”.

[84] Robertson J emphasised the need for parties to cooperate. The Court should also be able to expect the same of accountants who are engaged to give expert evidence before the courts. In a relationship property context, such experts should be mindful of s 1N(d) PRA. To that end, they should be ready to engage with other professionals and to obtain the information which reasonably and realistically they need, in a manner which is cost-effective and which also is likely to promote respect and trust between parties as they attempt to resolve matters in dispute.

[85] In Dixon v Kingsley, Kós J emphasised the need for realism in relationship property cases. Associated with that, he said:¹³

Wide-ranging discovery obligations, with associated opportunity for interlocutory wrangling, interlocutory applications and appeals, create a substantial risk of injustice by precluding or limiting access to civil justice. Peruvian Guano-type obligations¹⁴may be entirely inappropriate where the assets available are limited.

[86] While Kós J’s comments dealt with a situation where litigation might involve assets of limited value, they are also pertinent where, simply because of one party’s wealth, another pursues litigation in a manner which creates a substantial risk of injustice. That can happen when one or both parties is wealthy, wishing perhaps to preserve a relationship with children, or simply wanting to make the clean break that enables them to move on in their lives. For such a party, there can also be a substantial risk of injustice if they are faced with undue pressure to compromise on what might be a properly maintainable legal position because they have to be a party to litigation which is being conducted in a way that exacts a financial and human toll, more than is

¹⁴Kós J was referring to the very wide scope of discovery set out in the English case Compagnie

I accept, as a general statement, that wide discovery may sometimes be appropriate and necessary (to ensure the parties have access to all the relevant documents), but the appropriate scope of discovery in a particular case will still be determined by relevance and reasonable necessity. The need for transparency is not a justification for ordering onerous discovery which is unnecessary for the disposition of the claims. A balance must be struck between the need for transparency (i.e. so that, where there is asymmetry of knowledge, a party obtains relevant information) and applications seeking wide-ranging information which are “fishing” in the hope that something of use may be uncovered. That balance is achieved by limiting discovery to what is reasonably necessary at the time the discovery is sought.

[88] Mr Lyne’s discovery requirements were first set out in a letter of 22 August

2016. These were later mirrored in a schedule attached to an application for discovery. The schedule had 124 categories of documents. The list indicated that Mr Lyne wanted to effectively audit how the various trusts and companies, with which Mr Biggs had been associated during the marriage, had been established and how they had operated during the relationship and afterwards. He wanted to do that not just by looking at records such as the annual accounts, which summarised the transactions in which those entities had been involved, but by examining documents such as bank statements, Mr Biggs’ email correspondence and the accountant’s work papers and general ledgers.

1 January 2010 to the date of the application (ie including the period after separation);

(d) a copy or printout of Mr Biggs’ calendar/appointment diary used for work purposes from 1 January 2010 to the date of the application;

(e) a copy of all (ie worldwide) 2015 income tax returns of Mr Biggs along with all tax return work papers; and

(f) a copy of valuations and documents recording rental income in respect of property at:

(These were immovable property assets of which Ms Biggs eventually acknowledged could not be the subject of a claim within the New Zealand jurisdiction.)

[90] The documents Mr Lyne required as to Laguna Pastoral and associated entities included:

• copies of those companies’ board of directors’ reports, senior management reports recording assets under management, fund and group performance including operation and financial management reports;

• a list of their institutional and non-institutional investors as at February

• a copy of all fee agreements with each of the companies institutional and non-institutional investors;

• a copy of all investment committee meeting “information packs” as well as minutes of meetings;

• copies of roadshow presentations and marketing material, promotional material, information memorandums, prospectuses, investor statements and similar documents provided to investors during the period January

• a copy of records including general ledger extracts, PAYG records and all management accounting records evidencing total remuneration and benefits paid and provided to Mr McGavin for the years 30 June 2010 to

• a copy of all accounting work papers used or produced in preparation of the financial statements for the years to which accounts were available and copies of tax returns.

[91] Mr Lyne swore a second affidavit on 6 September 2016 in support of Ms Biggs’

[92] In that affidavit, he presented the wiring diagram of what he described as the couple’s various interests, details of the various trusts, details of various companies, and details of properties owned by the couple. He was able to provide a high-level summary of the various entities and provide detailed information from a range of accounts. He commented on the profits from Laguna Bay Capital Pty Ltd over the years 2011 to 2014, and the profits and gains in the Trading Trust 2011 to 2014. He described the shareholding arrangements with a 50/50 split as between the Trading Trust and McGavin interests with Laguna Pastoral. He knew the company was established on 13 October 2013 and referred to the statement of financial performance for the company in the 2014 financial year and the statement of financial position for

that company and its record of net tangible assets, then in the 2014 accounts at

[93] He was aware of the financial performance of Laguna Bay Management Pty Ltd in the financial years 2012 to 2014 and referred to the statement of financial position for the company as at 30 June 2014. He referred to the statement of financial performance for Laguna Bay Capital Management Trust in the financial years after it was formed, from 2012 to 2014.

[95] In his affidavit of 15 March 2018, Mr Biggs provides detail as to what he says were mistakes in Mr Lyne’s estimate:

(a) Laguna Sierra is owned by the Trading Trust. Mr Biggs says the value of its investment in the Aspen property has been brought into account twice;

(c) in ascribing a value to the Trading Trust, Mr Lyne refers to the income equalisation reserve. Mr Biggs asserts this was purely for taxation purposes, it does not represent true equity and has no value;

(d) Mr Lyne has allowed for an asset of $10,603,000 as an advance from Mr Biggs to the Trading Trust without bringing into account about $5 million that was applied in the purchase and build of the Queenstown property, the value of which is included in Mr Lyne’s estimated value; and

Mr Biggs claims Mr Lyne’s $59 million value is an over-valuation of at least $25 million.

[96] Mr Lyne said that, from his review of affidavits of the couple and information available to them on the group, it appeared that, during the relationship, Mr Biggs’

skills and efforts had been directed primarily towards two businesses: the Laguna Pastoral business of agricultural funds management and asset acquisition, which he said he understood Mr Biggs co-founded with Tim McGavin in or around 2010, and the Trading Trust, through which Mr Biggs conducted equities and commodities trading activities using “his own capital”. He identified that the largest source of Mr Biggs’ taxable income was from “discounted” capital gains of the Trading Trust, returned by Mr Biggs for income tax purposes at 50 per cent of the actual capital gain arising.

[97] A list of principal documents relied upon was in appendix 1 to Mr Lyne’s affidavit. It is apparent from that list that Mr Lyne had extensive annual financial accounts for various entities for the years of operation through to 2014, financial statements for the Trading Trust for the years 2009 to 2014, the tax returns for LBPC Investments for the years ended 2011 through to 2014, tax return for Laguna Pastoral for the 2014 financial year, tax return for LBPC Services for the 2014 financial year, tax returns for Mr Biggs for the 2010 to 2014 years, and minutes of trustees meetings from June 2011 to 2014.¹⁶

[98] There were ways Mr Lyne’s discovery expectations in August 2016 were oppressive. Meeting Mr Lyne’s expectations was inevitably going to put both parties to significant expense.

[99] Consistent with that, in an affidavit of 1 September 2016, Ms Biggs said she had incurred legal costs to that date of about $80,000, and forensic accounting costs of about $61,000. She said she had engaged junior counsel with an hourly rate of $310 and senior counsel with an hourly rate of $1,250. At that time, she said her estimated total accountancy costs through to the final hearing was close to $200,000. In a maintenance application, she sought a total monthly amount of $50,650, comprised of

$20,650 monthly for herself and outgoings on the Queenstown property and $30,000 per month for legal and accounting costs.

[100] On 22 November 2016, Mr Paul Moriarty, Chartered Accountant, provided a detailed report for Mr Biggs. Mr Moriarty has extensive experience in assisting with

litigation. Mr Moriarty identified the entities with which Mr Biggs was involved at

the beginning of the relationship and the debt to Mr Biggs personally from the Trading Trust of $7.3 million which he said arose from Mr Biggs’ original injection of capital into the trust. He identified three debt-free property holdings that were in Mr Biggs’ personal name at the beginning of the relationship: the half share in Stradbroke Island, the Noosa land and an apartment in Buenos Aires. He identified property owned at the end of the relationship, putting to one side assets such as vehicles, bank accounts, superannuation and chattels. He referred to the Queenstown property. He identified that, during the relationship, several new companies and trusts were incorporated or settled by the Trading Trust and said these had occurred as a result of redeployment of capital into three areas of activity:

[101] Mr Moriarty said he had reviewed the affairs of the Trading Trust which he considered was the central entity through which investments had been funded, reviewed movements in the loan account between the Trading Trust and Mr Biggs, and reviewed the investments that had occurred during the relationship and identified any property involved in those investments. He said the financial statements of the Trading Trust reflected the historic activity along with the investments made during

the relationship. He summarised those. He noted the volatility in profits. He described how, during particular financial years, there was a sale of long-term strategic investments freeing up capital for redeployment into other areas.

[102] Mr Moriarty’s report provided detailed information as to the most significant business activities Mr Biggs had been involved in during the relationship, how new investments had been financed, and the impact this had on the value of property held by the various entities at the end of the relationship.

[103] In his affidavit, Mr Lyne had provided an opinion as to Mr Biggs’ income. For tax purposes, Mr Biggs’ net taxable income included 50 per cent of capital gains within

the Trading Trust. Mr Lyne considered that Mr Biggs’ income should be as represented in his tax returns plus income and distributions of the Trading Trust over the five years. Mr Moriarty acknowledged the way capital gains had been reflected in Mr Biggs’ income returns but was of the opinion that, in assessing his income and earning capacity, the focus should have been on what he had been paid, or should have been paid, for personal services he had provided to the Trading Trust, and not on one-off capital gains allocated to him, or cash flows arising from the repayment of a separate property debt which had existed before the relationship began. Mr Moriarty referred to the AUD75,000 of remuneration Mr Biggs had received from the Trading Trust but pointed to information that Mr Biggs had not been employed full time during the period of the relationship.

In relation to LBPC, Tim Biggs’ contribution (time effort) has been independently assessed to be 33% of that contribution by Tim McGavin. In return for this, he has been allocated a fee of $83,333 per annum, backdated to February 2014 when the Adveq Almond Trust 2 settled. (One of the Laguna Pastoral unit trusts.) Since Tim McGavin’s salary is at market rate, and the value of Tim Biggs’ contribution has been independently assessed at 33% of this, it is reasonable to infer that the market remuneration of Tim Biggs’ service into LBPC is $83,333 per annual.

[105] The report footnoted that the 33 per cent contribution of time and effort was based on a recent and anonymous staff vote on everyone’s contribution towards the close of the most recent fund and Mr McGavin’s arm’s length market salary was

[106] Mr Lyne criticised Mr Moriarty for accepting instructions and expressing an opinion as to whether relationship property existed in, or had been invested in, the various trusts and companies associated with Mr Biggs. I agree the classification of property as either relationship or separate property is a legal issue for lawyers or, if necessary, for a Judge to determine. Mr Biggs’ lawyers should not have assumed that Mr Moriarty would know all the ways that a relationship property interest could exist in assets held under another name.

[107] Nevertheless, Mr Moriarty’s report provided much useful information as to the investments that the various Biggs entities had been involved with during the

relationship and whether Mr or Ms Biggs had contributed personal funds towards the investments. His analysis should have been of value to the parties and their counsel in identifying whether and to what extent, from a purely financial and accounting perspective, the wealth in the Biggs entities at separation was derived from the wealth in those or related entities at the beginning of the relationship.

[108] On 2 December 2016, Mr and Ms Biggs recorded their intention to hold a private mediation to discuss a final property settlement. The mediation was arranged for 20 February 2017. Mr Warren Sowerby was to be the mediator. Mr Biggs agreed to provide $30,000 to Ms Biggs and says it was to assist Ms Biggs in obtaining advice for the intended mediation. Their agreement records this was provided on “an uncategorised basis”. They also agreed the proceedings would be transferred to the High Court.

[109] In a third affidavit, sworn 24 February 2017, Mr Lyne annexed his letter setting out the documents he required for a limited scope analysis in advance of a proposed mediation. The documents he required were again extensive, including for instance:

• bank statements for all Mr Biggs bank accounts for the period 1 January 2010 to 22 December 2016;

• Laguna Pastoral “operational reports or similar” for the years ended 30 June

• Laguna Pastoral financial projections, budgets and forecasts prepared between

• roadshow presentations, promotional materials, information memorandums and similar documents prepared during the period January 2010 to the present; and

June 2016 for all inter-company or inter-entity accounts, all shareholder/director current accounts or term loans/advance accounts, and general ledger extracts for Laguna Pastoral, LPC Investments Pty Ltd, Laguna

Bay Capital Pty Ltd, Laguna Bay Management Pty Ltd, the Trading Trust, LBMT, and Laguna Sierra LLC.

[110] On 1 February 2017, Ms Biggs’ solicitors said that she would not confirm her participation in mediation until the documents sought by Mr Lyne had been provided.

[111] Mr Biggs refused to provide all the documents Mr Lyne requested. He said some of these documents had already been supplied and some were irrelevant. He refused to provide certain documents in respect of Laguna Pastoral. His solicitors said the request appeared to encompass documents in specific unit trusts below manager level and operational documents relating to the investments by unit trusts, confidential marketing material and fee arrangements with investors. Mr Biggs’ solicitors did not consider the documents to be relevant or necessary.

[112] In a letter of 27 January 2017 to Ms Biggs’ solicitor, Mr Biggs’ solicitors wrote:

As to the financial information, we reiterate that the financial accounts for FY

2015 that will be provided are the relevant financial accounts. There are no available/reliable management accounts for the period July 2015/January

2016. These entities have never produced monthly/quarterly accounts or budgets. Accounts are prepared for filing in May 2016 in the ordinary course

to comply with regulatory requirements, and there are not the resources to have them completed earlier than this. Tim is prepared to facilitate

engagement between the accountants by which Mr Lyne may confirm in writing directly [sic] what information is available with Shreyas Chotai, the entity’s accountant; and to enable Brendan Lyne to have any questions he has

asked via written question and answers provided in writing by Shreyas Chotai. That is only on the basis of confirmation of commitment to the 20 February

[113] As is apparent from subsequent developments, more information or documents relating to this company could have been supplied but Mr Lyne already had annual accounts for the company for 2014 and knew, in general terms, a significant amount about how the company operated. Further information had been provided in Mr Moriarty’s report. By then, Mr Lyne had all the documents on which Mr Moriarty’s report was based.

[114] Ms Biggs also had some understanding of the general nature of the company’s business and the extent of Mr Biggs’ involvement. In his affidavit of 24 June 2016, Mr Biggs described Ms Biggs as “an experienced and competent stockbroker and

funds investor”. In answering interrogatories in her affidavit of 16 March 2018, Ms Biggs produced a document headed “a deal attribution and transaction history for Laguna of May 2015”. It summarised how the Laguna Bay business was set up, the sort of investments the business had been involved in between 2011 and 2014, the major transactions and investments the business had made and the individuals involved, with specific reference to Mr Biggs’ responsibility for various investments.

[115] In answering interrogatories, Ms Biggs referred to the time Mr Biggs was away. She said his passport, itineraries and diary, provided in her discovery, confirmed this. She produced a bundle of emails from 7 December 2012 to 2 November 2014 which she considered supported her views in relation to her contributions, reflected what they had discussed in relation to the challenges Mr Biggs faced with the Laguna Pastoral business and his trading, and stated what she said they were hoping to achieve. She described generally the way she considered she had supported him in his business activities through socialising with business-related people and in other general ways.

[116] In her recent submissions as to confidentiality, Ms Chambers said “Mrs Biggs already knows a significant amount about the business”.

[117] In February 2017, Ms Biggs did not have a valuation of shares in Laguna Pastoral but Mr Lyne had been able to arrive at tentative or indicative values for the various entities in his affidavit of 6 September 2016. Mr Biggs had indicated he did not accept that Ms Biggs would have a claim against trust assets. Despite this, given the potential benefits to the parties of a mediated settlement, it was unfortunate they did not take advantage of the February 2017 mediation opportunity.

[118] The position of Ms Biggs and her advisers was made clear in a letter from Ms Chambers to Mr Biggs’ solicitors of 4 April 2017. She indicated that Ms Biggs would like to mediate if possible but said Ms Biggs’ preconditions for mediation at that point were:

... it would be unprofessional for Sophie to attend mediation without a clear understanding of her entitlements under the Property (Relationships) Act

report advising me in regard to the financial transactions during the relationship. Sophie does not have a forensic report because Tim has been obstructive in regard to discovery.

[120] In the High Court, Ms Biggs then sought to pursue her application for discovery and filed an application on 21 February 2017 for an interim distribution and an order that Mr Biggs pay legal and accounting fees. On 21 February 2017, she filed a first statement of claim in the High Court proceedings. It included a PRA claim as to her share of relationship property; applications under ss 9A, 20E, 44C, 44F and 32; claims in respect of the Noosa, Stradbroke Island and Argentina properties; a claim under s 182 Family Proceedings Act; and claims based on constructive trust allegations.

[121] On 25 March 2017, Mr Biggs filed an application for orders for further and better particulars, an application striking out three causes of action included in Ms Biggs’ statement of claim dated 21 February 2017 and an application for an order that the Court decide a question separately before trial. Mr Biggs also then filed his counterclaim for a s 13 unequal sharing of relationship property.

[122] It appeared the parties and their advisers were committed to an intensely adversarial approach to resolving their claims, an approach which, certainly as far as costs were concerned, was not to the benefit of Mr and Ms Biggs personally.

[123] Mr Biggs did however provide further discovery. In an affidavit of 16 February

2017, he provided a detailed response to the specific requests for discovery that had been made in Ms Biggs’ application, as set out in the schedule associated with that application. He referred to the extensive documents he had already provided, stated that certain documents requested had not been provided because they did not exist and agreed he would provide taxation returns for the years ended June 2015 and 2016 when they were available. He refused to provide certain documents on the basis they were irrelevant. He repeated objections that had been made earlier as to discovery of documents connected with Laguna Pastoral on the basis the documentation sought was

confidential to unit trust holders or was commercially sensitive. For those entities and certain other companies, he opposed the discovery of work papers that might exist in connection with the preparation of financial accounts. He also opposed the provision of the general ledger saying that the financial accounts and tax returns for the various entities were accurate and “the accountants who prepared the financial accounts are skilled and reputable”.

[124] As to that objection and explanation, in a fourth affidavit, Mr Lyne said he considered there were no details, even at a high level, of what constituted the movement between year end balances. As to Mr Biggs’ reference to financial accounts having been prepared by reputable accountants, Mr Lyne said this was “entirely irrelevant. The accounts lacked independence, the financial statements were compilation only, had not included verification or validation of procedures and no audit had been carried out”.

[125] In responding to Mr Lyne’s criticisms to his report and what Mr Lyne considered the inadequacy of the information he had relied upon, Mr Moriarty said he had engaged with Shreyas Chotai, the accountant who prepared the annual accounts he had referred to. He said he found Shreyas Chotai to be helpful in providing both explanations and relevant documents. Mr Moriarty said:

I have approached my expert analysis and report on the basis that, in assisting the Court to identify separate and relationship property, the role of the expert accountant is not to trawl through the minutiae but to maintain a sense of proportionality in accordance with s 1N(d) of the Property (Relationships) Act

1976 so that identification and classification of property can be resolved as inexpensively, simply and speedily as is consistent with justice.

[126] In his fifth affidavit of 21 April 2017, Mr Lyne responded to affidavits from both Mr Biggs and Mr Moriarty. He criticised detailed statements that both had made and explained why he had particular concerns as to the way various transactions had been recorded in accounts made available to him, and queries he had arising out of other records which he had examined. He did all this, he said, to explain why he needed the extensive further documentation.

[127] In an affidavit of 26 May 2017, Mr Biggs responded in detail to the issues and concerns Mr Lyne had raised in his fifth affidavit. When providing explanations, he

attached documents such as accounts, financial statements, ledger accounts and bank statements to back up what he was saying.

[128] Mr Moriarty also swore an affidavit of 30 May 2017 in response to Mr Lyne’s criticisms and queries. His responses and explanations were also detailed and supported by reference to relevant documents. He noted that his expectation was that

[129] The way in which the conduct of these proceedings has impacted negatively on the parties’ relationship, increasing distrust and further difficulty in achieving the resolution of matters is apparent from developments since then. Some of these are reflected in the judgments of Davidson J of 12 October 2017 and 18 December 2017.¹⁷

[130] Correspondence between the parties’ legal advisers of 15 December 2017 reflected Mr Biggs’ frustration at what he saw as a stone-walling of attempts to resolve relationship property claims.

[131] In an affidavit of 5 February 2018, Ms Biggs said she was having difficulty obtaining cooperation from Mr Biggs over payment of what she considered to be expenses for the sale of the home. She said that, as a consequence of no decision having been made on her applications for interim distribution/legal costs and the hugely expensive litigation costs in trying to have Mr Biggs provide disclosure, she had no option but to sell the Queenstown property. She said she did not want to do this as she loved the property and it was their daughter’s home.

[132] On Friday 2 March 2018, Mr Biggs received an email directly from Ms Biggs giving him notice that she and their daughter were relocating to Brisbane. Mr Biggs says in his affidavit that he sought information as to what his daughter’s living arrangements would be. Ms Biggs then told him that she was in a de facto relationship and would be living in her new partner’s home in Brisbane.

[133] Mr Lyne swore a seventh affidavit on 7 February 2018. In that affidavit, he produced correspondence between the parties’ solicitors. That correspondence

indicated Mr Biggs required undertakings as to confidentiality from those to whom disclosure was to be made and a full indemnity from Mr Lyne and employees of his firm if there was any breach of confidentiality.¹⁸The distrustful nature of Mr Biggs’ requirements was matched by Mr Lyne’s opinion as expressed in his affidavit that what Mr Biggs was doing was “an ongoing attempt by Mr Biggs to frustrate disclosure, delay matters and cause Mrs Biggs to incur additional cost”.

[134] The second, third and fourth defendant trustees were not joined in these proceedings until 24 January 2018. With their involvement, separately represented, some progress was made in providing further documents from Laguna Pastoral. Through counsel, the trustees made available to Mr Lyne a report from Grant Thornton, chartered accountants, valuing the shares in the company. The provision of the valuation report should have been seen as a positive step. It provided Ms Biggs and her advisers with more relevant information. No party was insisting that it had to be accepted as establishing the then up to date value of shares in the company.

[135] Mr Lyne’s response however was not to treat it as a positive development but to criticise it as “totally inadequate”. His concerns were that it was:

(a) a year out of date, having been based on figures as at 31 December 2016 although dated April 2017;

(b) provided on an indicative basis only so, in his view, probably based on limited information; and

[136] He went further to say that he could see no reason why Laguna Pastoral would commission such a valuation other than for the purposes of presenting a low valuation.

[137] In an affidavit in response on 15 March 2018, Mr Biggs said that Laguna Pastoral had obtained the valuation of its shares for the purpose of making some of the shares available to key staff of Laguna Pastoral. Mr Biggs said that, as only one of the two directors of Laguna Pastoral, and with the Trading Trust having a 50 per cent shareholding, he did not unilaterally control what documents could be made available from that company. He asserted he had done his best to provide some initial material through providing the financial accounts for the company and had asked Tiffany Hedberg, as a director of Laguna Bay Capital Pty Ltd, to liaise with his co-director, Tim McGavin, to obtain documents sufficient to enable a valuation for the purpose of these proceedings.

[139] I am satisfied that Mr Biggs has never withheld documents or information for the purpose of consciously obstructing any claim he thought Ms Biggs might have. I accept that his concerns about confidentiality have been genuine. Different information has been provided as negotiations have developed or as claims have developed and been clarified.

[140] The accounts, bank statements, tax returns and various other documents supplied were sufficient to allow Mr Lyne to have a clear understanding as to how all the entities were related and to see what has happened to the assets and liabilities of those entities on a year-by-year basis. The information has been sufficient for him to raise specific queries as to matters of concern to him, even as to amounts that were modest in the scheme of what is generally at issue in these proceedings. When he raised such concerns, which were at odds with evidence given by Mr Biggs or opinions

expressed by Mr Moriarty, they were answered promptly, in detail and with reference to documents which could reasonably be referred to in support of the responses which were being provided.

[141] Ms Chambers submitted detailed discovery, including full ledgers, was sought because Mr Biggs had concealed information, her submissions as to this having been recorded by Davidson J at paras [48] to [51] of his 12 October 2017 judgment.¹⁹Ms McCartney dealt comprehensively with the alleged anomalies in her submissions.

[142] I am satisfied that the allegations have been satisfactorily explained and answered through the information which Mr Biggs has provided with his affidavits and the documents provided to Ms Biggs’ advisers, both before and since these allegations were made.

[143] The evidence before the Court does not provide any reasonable evidential basis to justify Ms Chambers’ submissions to me in March 2018 that Mr Biggs’ conduct in this case is akin to that of the husband in SM v LFDB. I note also that Ms Chambers made this submission despite Davidson J saying in his judgment of 12 October 2017 that there was no evidence here of it being Mr Biggs’ objective to prevent Ms Biggs from pursuing litigation to a conclusion “by a process of financial attrition”.²⁰

[144] In Ms Biggs’ application for discovery against the second, third and fourth defendants dated 23 February 2018, orders were sought for documents in specified categories set out in the application. Only certain categories are in dispute.

[145] In a notice of opposition, the trustees agreed to provide a number of those documents as to:

²⁰Biggs v Biggs, above n 1, at [80], referring to SM v LFDB, above n 2, at [58].

[146] Subject to guarantees over confidentiality, Laguna Pastoral is going to provide investor statements in the two funds which that company is managing. Ms Anderson said these would show the present value of the investments in those funds which are held for the benefit of the investors. The company is also going to provide extracts as to the fee arrangements which have been agreed to with the investors. That information is relevant in evidencing the likely income that Laguna Pastoral will derive from its business, information that is relevant to the valuation of the Trading Trust’s 50 per cent shareholding in that company.

4. All correspondence between Trustee’s (current and former) in respect of the Trusts or beneficiaries of the Trusts.

7. All information received by the Trustees by the Trusts to inform their exercises of discretion in respect of distributions to beneficiaries (but not advice directed to the Trustees reasons for the exercise of the discretion).

9. All legal opinions and other written legal advice obtained by the Trustees of the Trusts for the period of the Trusts existence to present time

10. All solicitors’ files in regard to the operation and establishment of the trusts;

11. Any other documents held by the Second to Fourth Defendants that are relevant to the claims made by the Plaintiff, that adversely affect the

Second to Fourth Defendants case, that adversely affect the Plaintiff’s case and/or support any other parties’ case.

[149] Ms Chambers accepted that there is a distinction between discovery and inspection but submitted that it would be more efficient for orders to be made as to both at this stage.

All correspondence between trustees (current and former) in respect of the trusts or beneficiaries of the trusts.

[151] In her submissions, Ms Chambers accepted this category was “too widely expressed”. The discovery Ms Biggs now seeks is as to “all correspondence received or sent by the trustees relevant to” six different matters, (a) to (f) discussed below.

[152] As Ms Anderson submitted, the scope of what was sought was actually widened because it related not just to correspondence between trustees but “as to all correspondence received or sent by the trustees”.

... will help to illuminate issues such as the nature and quantification of dispositions and contributions to the trusts, the trusts’ proximity to the marriage, how the trustees are exercising or likely to exercise their powers in the changed circumstances, the parties’ expectations of the settlements, the source of the assets of the settlements, and the purposes of the trusts.

[154] Ms Anderson pointed out that Mr Biggs was and remains the sole trustee of the Tim Biggs Family Trust. He was the sole director and trustee of the other two trusts until January 2015 and remained a director until August 2017. Ms Anderson noted that discovery was being sought against Mr Biggs and he had never sought to avoid discovery on the basis documents might have been held by him as a trustee. Ms Anderson submitted that, if discovery was necessary or proportionate, there should not be “double discovery” required from both Mr Biggs and the trustees. I accept that submission.

[155] I also accept that the discovery sought is too wide in that it is being sought in respect of any correspondence received or sent by the trustees without being confined to what is at issue in the pleadings.

[156] I deal now with the six different sub-categories in relation to category 4.

(a) Disposi ti on s to trus tees - dispositions to the trustee defendants by (or on behalf of or at the request of) Tim Biggs and Sophie Biggs since January 2010, including the reasons for these dispositions, the accounting treatment of these dispositions and the value of these dispositions.

[157] Ms Anderson noted the only dispositions involving the trusts put in issue through the pleadings are:

[158] Ms Anderson said there had been substantial discovery already provided as to these alleged dispositions and, to the extent there are likely to be any documents relevant to this, they will be available through the discovery that is being sought or provided as against Mr Biggs.

[159] Mr Lyne says there has been inadequate documentation to confirm the explanations provided for the various transactions by Mr Biggs. The reasons for the various transactions will generally be apparent from the circumstances in which they occurred. To require the trustees to discover all documents they might have and which may be relevant to the transactions referred to in the pleadings, or as sought by Ms Biggs, to all dispositions without limitation, would be oppressive and out of proportion to the cost burden and utility of making the discovery sought.

[160] I decline to make an order for discovery against the trustees as to this sub- category of documents.

(b) Value of Mr Biggs ’ w ork for trus tees - the financial value, quality and quantity of Tim Biggs’ work for the second, third and fourth defendants since January 2010.

[161] Ms Anderson submitted, to the extent discovery as to this is required, sufficient information has already been provided through the financial accounts for the various trusts.

[162] Ms Biggs says in her affidavit that, during the marriage, the focus of Mr Biggs’ business activities was with regard to Laguna Pastoral. His salary from the Trading Trust remained at $75,000 per annum. Ms Biggs can give evidence and Mr Biggs can be cross-examined about the extent of his work for the trust at trial. Ms Hedberg worked with Mr Biggs for the last 14 years. She can be cross-examined about the extent of his work for the trusts. The general nature of the trust’s activities will be apparent from the annual accounts for the trusts.

[163] Mr Biggs says that his remuneration from Laguna Pastoral had to be agreed with an equal partner, Mr McGavin, but it was Mr McGavin who was the chief executive of the company. Mr McGavin’s salary was a market salary established on an arms-length basis. Mr Moriarty said that Mr Biggs’ salary was then fixed as a proportion of Mr McGavin’s salary in accordance with an anonymous survey of Laguna Pastoral staff as to the time which they each allocated to the business of the company.

[164] If the information provided by Mr Moriarty is correct, there should be readily available, through Laguna Pastoral, information and documents which, independent of both these parties, provide illuminating information as to the extent of Mr Biggs’ involvement with Laguna Pastoral during the marriage, and what the reasonable remuneration for that work would have been. Providing some documents as to the process by which the salaries of Mr McGavin and Mr Biggs were arrived at could well avoid the need for the intense forensic examination which it would appear Mr Lyne wishes to embark on in relation to this issue.

[165] I will deal with discovery of Laguna Pastoral documents separately but will not order the trustees to make discovery of documents sought in this sub-category.

Such discovery is not needed for the Court to fairly and justly determine relationship property rights.

(c) Proposed di str ibut ions - proposed distributions to beneficiaries of the Tim

[166] Ms Anderson said there would be discovery as to actual distributions and any trustee minutes for all distributions since January 2010. She submitted any correspondence as to a “proposed distribution” that was not in fact made would have no relevance.

[167] The best evidence as to why any distributions or payments from the trusts were made will be apparent from evidence as to the circumstances in which the payments were made and how those payments were applied. Significant documentation as to this has already been provided. To require further discovery in this regard against the trustees would be oppressive. I decline to make any order for such discovery.

(d) Use of trus t assets - the use and or provision of assets of the trustee defendants for the benefit of Tim Biggs and or Sophie Biggs since January 2010.

[168] Ms Anderson submits, to the extent capital of the trusts has been used in this way, it will be apparent from the accounts. Information as to this has also been available through bank statements and documents which have already been available to Mr Lyne and Mr Moriarty. That documentation should be sufficient for all parties to advance their respective cases as they are pleaded. I consider that to require further discovery in this regard would be oppressive and disproportionate. I decline to make orders for discovery as sought.

(e) C ontri buti ons of Mrs Biggs - the direct and indirect contributions of Sophie

[169] As to this, Ms Anderson submits the direct and indirect contributions which

Ms Biggs relies on, as set out in her constructive trust claim, are limited to: (a) her role as homemaker/caregiver for their daughter;

[170] Ms Anderson submits it is highly unlikely there was any correspondence from the trustees, in their capacity as trustee, with regard to these claims. She says there would be a burden for the trustees in investigating whether such correspondence or other documentation exists that has not already been discovered. To the extent any such documents might be in existence and discoverable, I accept they are likely to be discoverable as against Mr Biggs, and the trustee defendants should not be put to the trouble and expense of double discovery.

[171] I accept that it is unlikely the trustees will hold documents of any real probative value either for or against the claims Ms Biggs is making in this regard. The documentation she relies on is the sort that was included in the 644 pages of documents associated with her answer to interlocutories. I decline to make any order for discovery against the trustees as to this category.

(f) Purpose of trus ts - the purpose(s) of the Tim Biggs Family Trust, the Trading

[172] Ms Anderson has said the establishment files for the trusts, where they still exist, will be discovered. She submits that the application in this regard is “too opaque and imprecise” for a discovery order, particularly when the accounts for the trust show the nature of their operations and assets, and when the request asks for documents back to 2004 in the case of the Tim Biggs Family Trust and 2006 in the case of the Trading Trust.

[173] Again, the best evidence as to the purposes of these trusts will be derived from the trust deeds, any memorandum of wishes that might exist and the evidence as to how the trusts have been operated. Ms Biggs has had that last information through the accounts which have already been provided. The other documents, to the extent they exist, have been or will be provided without the need for formal discovery.

[174] The Tim Biggs Family Trust and the Trading Trust were established well before the relationship between Mr and Ms Biggs began. Whatever reasons the settlor referred to in the trust deeds or Mr Biggs, if he was the de facto settlor, had for establishing the trusts, could have had nothing to do with Ms Biggs personally. The extent to which Ms Biggs could benefit from those trusts and the capacity in which she might have benefited from them will be apparent from the trust deeds. The extent to which those trusts might have been administered or utilised for her benefit during the parties’ relationship will be apparent from the annual accounts for the partnership and the significantly detailed information which has already been provided by Mr Biggs as to how funds available in trusts were paid to Mr Biggs on account of the debts shown as being due to him in loan accounts for the trust and how those monies were utilised.

[175] Mr Biggs and Mr Moriarty have said the Laguna Bay Capital MT Trust was established as a vehicle to enable staff of Laguna Pastoral to buy into the unit trusts which Laguna Pastoral was to establish for the benefit of investors. In the absence of evidence to suggest otherwise, it would seem likely that this trust is largely, if not completely, irrelevant as far as Ms Biggs’ claims are concerned. The purpose of the trust, as claimed by Mr Biggs, may be apparent from the terms of the trust deed or the other accounts and other financial information which has already been made available as to this trust. Whether documents already provided have been sufficient for this purpose should be a matter on which the parties and their advisers can readily agree without putting the parties to the expense of formal discovery in this regard. I note that, in Mr Lyne’s analysis of the then latest accounts for this company, he put the balance sheet value of this trust at $9,902.

[176] To require further discovery, beyond what has already been provided or will be provided by agreement, would be oppressive.

All Correspondence between Trustees (current and former) in respect of the Trusts or beneficiaries of the Trusts.

All information received by the Trustees to inform their exercises of discretion in respect of distributions to beneficiaries (but not advice directed to the Trustees reasons for the exercise of the discretion).

[178] Ms Chambers submitted discovery of these documents would help to show “inter alia the trusts proximity to the marriage, how the trustees are exercising or likely to exercise their powers in the changed circumstances and the parties’ expectations of the settlements”.

[179] I do not consider that disclosure of the documents which Ms Biggs seeks in respect of this trust will be relevant to claims she has made under s 182 Family Proceedings Act, constructive trust, or ss 9A, 44 or 44C PRA.

[180] Ms Anderson submits discovery of trustee minutes (where they exist) should be sufficient. She said the instructions to counsel are that distributions were based on draft accounts which were overwritten by final accounts so that there was likely to be little documentation in this category. Again, the best evidence as to what may have informed the trustees’ decisions as to any distributions made during the marriage will be available through the extensive documentation already supplied which shows how any distributions were applied.

[181] Mr Biggs’ evidence, consistent with the accounts, is that funds were made available to him against the amounts due on his loan account with at least two of the trusts. There is little evidence, if any, of distributions from the trust either as to capital or income except in respect of capital gains for tax purposes. The wording of this category suggests it has been drafted not with regard to the particular circumstances of this case but as a standard form request for discovery that might be considered appropriate whenever the use of or way in which a trust is operated during a marriage is an issue in the proceedings.

[182] I do not consider any further discovery by the trustees as to this category, over and above what the trustees have already agreed to provide, will usefully advance matters for any of the parties.

All legal opinions and other written legal advice obtained by the trustees of the trusts for the period of the trust’s existence to the present time.

[183] Ms Chambers sought an itemised list of the legal advice obtained by the trustees of the Tim Biggs Family Trust and the Trading Trust for the periods of their existence. She said an itemised list is sought because Ms Biggs is likely to challenge claims of legal privilege asserted against her, particularly in relation to the period during which she was a beneficiary of the trusts.

[184] Ms Chambers submits that, where a trustee obtains legal advice in that capacity, the advice is sought for the benefit of the trust and its beneficiary so a trustee is not entitled to assert the trust’s privilege against the trust’s beneficiaries.²¹

[185] Ms Chambers submits the legal opinions and advice obtained by the trustees will be relevant to the identification of the purpose of the trusts, intentions behind dispositions to the trusts, the trusts’ connections or proximity to the marriage, the reasonable expectations of whether the trusts ought to yield to Ms Biggs an interest in their property and the identity of the de facto settlor of the trusts.

[186] For the trustees, Ms Anderson said that the advice to counsel at the time of the hearing was that there were, in fact, no documents in this category apart from counsel’s advice in the current litigation which she said would be of no probative value to the issues as between the parties and would be subject to litigation privilege as against Ms

[187] Ms Anderson submitted that any legal advice relating to the proceedings is privileged and, if discovery is entertained, it should be limited to issues raised specifically in the proceedings.

[188] I do not consider that further discovery in this regard is necessary. The potential for Ms Biggs to have benefited from either of the trusts will be apparent from the trust deeds. The way and extent to which she may have benefited from the trusts during the marriage will be apparent from the annual accounts which have already been provided for the trusts. The extent to which she might benefit from the trusts in the future should also be apparent from the trust deeds.

[189] In her submissions, Ms Chambers referred to Ms Biggs ceasing to be a beneficiary of the trusts with the dissolution of the marriage on 1 March 2018. The trustees’ pleading is that Ms Biggs could have had no expectation that she would benefit from the trusts after the dissolution of the marriage. Neither Mr Biggs nor the trustees have suggested that she will or might continue to benefit from the trusts in the future.

[190] In those circumstances, the discovery which Ms Biggs is seeking to advance a s 182 claim in respect of those trusts will serve no useful purpose. Requiring discovery as sought would thus be oppressive. I decline to order further discovery in this regard.

All solicitors’ files regarding the operation and establishment of the trusts.

[191] Ms Chambers submits the solicitors’ files will be relevant to identifying the purpose of the three trusts, the identity of the de facto settlor, the sources of their assets, the control exercised by Mr Biggs in the operation of the trusts, how the trustees are exercising or likely to exercise their powers in the changed circumstances, intentions behind dispositions to the three trusts and the trusts’ connections or proximity to the marriage.

[192] Ms Anderson says the trustees will provide discovery of such solicitors’ files, as continue to exist, as to the establishment of the trusts. She said it would be a

disproportionate burden on the trustees to investigate what other solicitors’ files may exist relating to the trusts’ operation generally.

[193] For reasons just discussed, I am not satisfied on the pleadings that there is an issue as to how the trustees are exercising or likely to exercise their powers in changed circumstances.

[194] The three trusts’ connections or proximity to the marriage are apparent from the time and circumstances in which the trusts were formed.

[195] In the pleadings, Ms Biggs does not raise issues as to the transfer of any property to any of the trusts, other than with reference to transfers of funds from various bank accounts to either a trust or the company with which the trust was associated. Such transactions are most unlikely to be dealt with by solicitors.

[196] There is no pleading that particular property or assets have been transferred to a trust with the intent or effect of defeating Ms Biggs’ relationship property claims. The extent to which Mr Biggs exercised control as to the operation of the trusts will not determine whether the trusts were validly set up as trusts,²²or whether, because of the terms of the trust deed, Mr Biggs remained the beneficial owner of trust property. Because he was the sole trustee of the Tim Biggs Family Trust, Mr Biggs was entitled to exercise control over the assets of the Tim Biggs Family Trust in terms of the trust deed and subject to whatever fiduciary obligations he owed as a trustee. It is only solicitors’ files relating to the establishment of the trusts that would be relevant to an argument that Mr Biggs was the de facto settlor of the trusts or as to the issue over what the real purpose of the trust was. The trustees have said they will make such files available if they exist.

[197] In her submissions, Ms Anderson highlighted the brief time the trustees had been party to the proceedings. Counsel considered there were likely to be very few documents in a number of the categories sought that had not already been discovered by Mr Biggs in his affidavit. Counsel submitted, in the circumstances of the

_{application, the discovery sought placed on the trustees a
disproportionate burden of}

investigation, including going back over a 10 year period in some cases, and speculative inquiry about what documents might be held by third parties, such as solicitors, without that process being likely to elicit documents, or documents that would be of appreciable relevance or benefit to the parties or the Court.

[198] I consider that, if Ms Biggs has legitimate claims against the trusts or against Mr Biggs in relation to his interest in trust assets, Ms Biggs will be able to fairly and properly advance those claims on the basis of the extensive information that has already been made available to her during the course of these proceedings. Further discovery of the sort she is seeking would be oppressive and out of proportion to the likely value of such discovery in advancing the claims she wishes to make.

[199] Except to the extent the trustees have agreed to, I consider any further discovery from the trustees as to this category would be unduly onerous and disproportionate.

Any other documents held by the second to fourth defendants that are relevant to the claims by the plaintiff, that adversely affect the second to fourth defendants case, that adversely affect the plaintiff’s case and/or support any other parties’ case.

[200] Ms Chambers acknowledged this was effectively seeking standard discovery. It was not pursued any further.

Conclusion as to Ms Biggs’ application for orders for discovery against trustee defendants

[201] I accordingly decline Ms Biggs’ application for further orders of discovery as against the second, third and fourth defendants. That decision is however made on the basis that they will make discovery to the extent agreed to in their notice of opposition and through counsel’s submissions. Leave is reserved to Ms Biggs to make a further application for discovery if they fail to do this.

[202] Ms Biggs’ application was originally filed in the Family Court on 23 August

2016. Mr Biggs filed a notice of opposition on 7 April 2017. Mr Biggs filed a detailed affidavit of documents on 28 August 2017. Davidson J adjourned the application in his judgment of 12 October 2017. A significant amount of documentation has been provided by Mr Biggs to Ms Biggs and her advisers as these proceedings have progressed.

[203] Counsel were agreed that what is in dispute is to be assessed against the schedule of documents for which discovery is sought in a ninth affidavit of Mr Lyne of 23 February 2018 and Mr Biggs’ affidavit in response of 15 March 2018. Although it is Ms Biggs who is applying for discovery, it is clearly Mr Lyne who has decided what he wants discovered. I will thus deal with the application at this point as reflecting Mr Lyne’s requirements.

[204] Mr Lyne’s requirements were set out in three schedules to that affidavit. Schedule 1 included 118 categories of documents under the heading “Schedule of documents the defendants object to providing”. Schedule 2 comprised 115 categories of documents under the heading “Schedule of documents which have not been made in full by the defendant”. Schedule 3 was for nine categories of documents under the heading “Schedule of additional documents required”. There is significant repetition in schs 1 and 2 with similar documents being sought but in respect of different entities.

[205] In his affidavit of 15 March 2018, Mr Biggs has detailed his response to each category mentioned in these schedules, indicating where there is an objection and where he considers documents have already been made available.

[206] In her submissions, Ms Chambers acknowledged that the level of detail sought here was greater than in the typical relationship property case. She submitted that what was sought here was not “an uninformed or generic stab in the dark typical of what is sometimes described as ‘fishing’ expeditions”. She referred to Mr Lyne’s explanation that bank statements, ledgers, accounting work papers and the like were

sought because the financial statements already provided were “too high level and too summary”. She submits the documents sought are not unduly onerous and are proportionate to what was at stake. She suggests “the trusts and corporate entities which he developed during the relationship with the wife’s assistance rose in value by tens of millions”. Ms Chambers referred to various matters to suggest that the claims

Ms Biggs was making had significant merit and there was reason to believe Mr Biggs was concealing information of relationship property.

[207] Ms Chambers submitted Mr Biggs should have to provide discovery of documents over which he had control. She said he is a director of Laguna Pastoral and “the ultimate controller” of all the structures in the property pool. He said he had never asserted that he could not request accountants’ work papers.

[208] Ms McCartney submitted that Mr Biggs had already complied with his discovery obligations. As to the principles to be applied, as well as referring to Dixon v Kingsley,²³Ms McCartney referred to the Court of Appeal’s observation that parties are required to discover only those documents that are relevant to a matter in question in the proceeding. Relevance is determined by the pleading and an order is not to be made unless the Court is satisfied that it is reasonably necessary. She accepted that documents central to providing an actual financial position must be provided but it will not be necessary to extend discovery further unless and until there is a basis for contending that the financial positions set out in the accounts are inaccurate or unless there is evidence that relationship property has been applied to other entities and there is a need to obtain further information about that through discovery.

[209] Ms McCartney responded in detail to submissions that there were anomalies in the information provided which necessitated further discovery. She submitted the documents already provided have been sufficient for Ms Biggs to confirm the scope of the claims she was making and to provide particulars of them. She submitted the issue now is over the documents that are required to value property at issue. She

[210] Given the length of this judgment, I will, as best I can, make my determination dealing with the documents sought in different groups. I have however scrutinised and considered Mr Lyne’s schedules and Mr Biggs’ responses item by item.

• Laguna Pastoral’s board of directors’ reports, senior management reports recording assets under management, fund and group performance including operational reports or similar and financial management reports for years ended 30 June 2014 to 30 June 2016;

2016 for each fund/unit trust under management and for investments in which Laguna Pastoral has an interest;

• a list of all Laguna Pastoral’s institutional and non-institutional investors as at February 2016 and current date;

• all fee agreements with each of Laguna Pastoral’s institutional and non- institutional investors;

• any and all financial projections, budgets and forecasts for Laguna Pastoral prepared since inception in 2010 through to the current date;

• documents recording approval/authorisations of the senior management team of Laguna Pastoral for various specified investments, establishment of unit trusts and those unit trust investments;

• all investment committee meetings information packs and information provided to committee members and minutes for years ended 30 June 2014 to 30 June 2016;

• roadshow presentations and marketing material, prospectuses, investor statements and similar for period January 2010 to present date;

• records, including PAYE records, managing accounting records evidencing total remuneration benefits paid and provided to Mr McGavin;

• all accounting work papers used or produced in preparing financial statements for years 30 June 2014 to 30 June 2016;

• bank statements for period October 2013 to present date for all bank accounts or similar financial information worldwide in the name of Laguna Pastoral;

• records of all remuneration and all benefits paid to or received by Mr Biggs from Laguna Pastoral;

• all documents relied on by Grant Thornton in their indicative valuation of Laguna Pastoral dated 18 April 2017 including documents they had referred to in the report’s Appendix B – source of information, not elsewhere provided;

• Grant Thornton’s work papers, file notes, confidentiality agreements, records of conversations and any other document related to the valuation, including the letter of engagement and take on discussions, conflict checks and any Grant Thornton internal correspondence related to the assignment;

• to the extent not already provided, full details since 2009 of all investments and managed funds. Documents to include but not limited to the acquisition, investment appraisal, performance, correspondence, management and investor reports, operational reports, disposal reports; and

• all documents in the above categories to bring the documentation up to the current date.

[212] Ms McCartney, for Mr Biggs, submitted that, with the Trading Trust having only a 50 per cent shareholding in Laguna Pastoral, orders cannot be made on the basis that Mr Biggs has such control over the company shares and affairs that he has control over what can be provided. She accepted however that Mr Biggs should be cooperating and using his best endeavours to facilitate provision of the Laguna Pastoral documents sufficient for the purpose of valuing the shares. She submitted he had done this.

[213] Ms Anderson, for the trustee defendants, says Ms Biggs’ application for discovery against those defendants did not seek discovery of Laguna Bay documents. She says such documents, as have been provided or which those defendants have agreed to provide, are to be provided voluntarily but on the strict terms of confidentiality insisted on by Laguna Pastoral. If those terms are not to apply, then there is no agreement for them to be supplied and the Court cannot order them to be supplied. She said the third defendant, being the 50 per cent shareholder in Laguna Pastoral, does not have control over the documents. She referred to the shareholders’ agreement in support of this. She says Mr Biggs cannot be ordered to provide Laguna Pastoral documents because he has no authority to do so from Laguna Pastoral. Ms Anderson submits that, if documents are to be sought from Laguna Pastoral, it should have been by an application for non-party discovery.

[214] In his response, Mr Biggs referred to some of these documents being under the control of the company and being subject to strict confidentiality. He referred to a number which had been made available through the trustee defendants. He says Ms Biggs already has significant documents provided about investments for years ended

30 June 2014 to 30 June 2016 and as to roadshow presentations and marketing material. He said records as to Mr McGavin’s employment were not held by him and were irrelevant. He considered the general ledger of Laguna Pastoral to be irrelevant to any issue of identification or value of relationship property, production of the company’s bank accounts to be disproportionate, the financial accounts and tax returns being accurate. He said ledger extracts for inter-company and inter-entity transactions had already been provided and detailed the periods covered by those extracts.

[215] The Court has an affidavit from Tiffany Hedberg, sworn 23 March 2018. She is the CFO of the Laguna Bay Group (non-farming). In the affidavit, she said she had been working with Laguna Pastoral’s internal counsel Samantha Bryce, and General Manager Ben Trickett to obtain authorisation from the company to provide documents material to valuation. She referred to the documents the company was willing to disclose on the basis there would be strict confidentiality in relation to them.

[216] Ms Hedberg says Laguna Bay is a relatively simple company. It had one fund under management until 30 June 2016, had few (if any) operating reports and very little internal reporting in the period before 30 June 2016. There was no finance/management team before June 2016. She said it was a company where there was still only a moderate level of reporting and such reporting, as there was, was reflected in the primary documents, being the annual financial accounts and budget. She said the information relevant to performance is the financial statements of Laguna Bay in 2014, 2015 and to date. She said that it would be an onerous task to dredge up information from 2014 out of the MYOB programme because the business transitioned to Xero in 2016.

[217] Ms Hedberg says Laguna Pastoral’s list of investors represents Laguna Pastoral’s work through analysis meetings, review, ongoing communications and connections spanning a period greater than five years. She says this work was reflected in the performance of Laguna Pastoral as set out in its annual financial accounts.

[218] Ms Hedberg says Laguna Pastoral objects to producing details of the investors in the unit funds because of the investors’ expectations as to confidentiality. She says Laguna Pastoral objects to disclosing copies of all fee agreements with each of the institutional and non-institutional investors because of the “extremely confidential” nature of those arrangements but confirmed that various documents had been provided to Ms Biggs’ advisers, subject to strict terms of confidentiality and on the basis that they would not be provided to Ms Biggs. The documents mentioned included the fee structure for Laguna Pastoral’s investors. She says these are in the trust deeds and in a side letter in respect of one investor. The basic fee structure and performance fee structure for one of the funds plus the side letter had been disclosed.

[219] Ms Hedberg says she is unaware of any authorisation documents for particular investments of Laguna Pastoral as sought by Mr Lyne. She says there are unlikely to be minutes relating to the board meetings and notes that board minutes tended to be kept only for statutorily required matters such as approval of accounts.

[220] Laguna Pastoral objects to producing information packs about how it has made investment decisions on the grounds that this would be its full history of analysis review and record of market and internal dynamics which is its intellectual property. Ms Hedberg said marketing and promotional material, and roadshow presentations were directed to the targeted investor. She says, where the promotion/presentation was successful, the investment that followed was reflected in the trust deed applying to that investor. Laguna Pastoral objects to providing information about Mr McGavin’s remuneration saying it is personal and confidential to Mr McGavin. She said the remuneration of Mr McGavin generally is in the annual financial statements of Laguna Pastoral.

[221] Ms Hedberg confirmed that Laguna Pastoral sought an external valuation by Grant Thornton for the sole purpose of a potential staff buy-in and without any consideration of Ms Biggs’ claim. She said the documents sought, such as Grant Thornton’s work papers, file notes and internal documents including confidentiality agreements, records of conversations, conflict checks and internal correspondence, belong to Grant Thornton and Laguna Pastoral was not in a position to provide those documents.

[222] Laguna Pastoral opposed provision of these documents on the basis that all investments by Laguna Pastoral are recorded in its annual financial accounts (and, if investments changed during the year, the overall change is reflected in the accounts).

[223] She indicated Laguna Pastoral was, subject to appropriate confidentiality constraints, prepared to release:

Laguna Pastoral’s calculation of management fees and future performance fees (if any);

• its budgeting/forecast model in the current applicable version which was provided to Grant Thornton for the purpose of its valuation. Laguna Pastoral has indicated it is also prepared to provide the present version of the forecast in pdf, subject to strict confidentiality;

• the shareholders’ agreement dated 31 October 2013 between Mr McGavin and Mr Biggs;

• all documents provided to Grant Thornton as referred to in their indicative valuation and their letter of engagement; and

[224] Ms Hedberg also indicated Laguna Pastoral would, subject to confidentiality, provide:

• updated financial projections which are contained in the annual budget plan for each unit trust;

[225] The documents which a party may be ordered to discover are limited to those which are or have been in that party’s control. This requirement arises in relation to standard discovery under r 8.7 High Court Rules and flows through to r 8.19 High

Court Rules. The applicant bears the onus of establishing a prima facie indication that documents are or have been in the respondent’s control.²⁴

[226] The concept of “control” is defined under r 1.3(1) High Court Rules to mean: (a) possession of the document; or

[227] This definition embraces the concept of “power”, which the House of Lords considered to mean a “presently enforceable legal right to obtain from whoever actually holds the document inspection of it without the need to obtain the consent of anyone else”.²⁵However, the control test under rr 8.7 and 8.19 is more extensive than the old formula “power possession or control”.²⁶A party may now be required to discover a document when they have no more than an entitlement of access to inspect or copy.²⁷

[228] In Dotcom & Ors v Attorney-General, Mr Dotcom had given interviews to a New Zealand journalist who had refused to provide the details of that interview on the basis of journalistic integrity.²⁸The parties sought discovery against Mr Dotcom personally, as he had the right to inspect these documents under the Privacy Act 1993. Accordingly, it was held that this was sufficient to bring the situation within the definition of control for the purposes of the High Court Rules. The ratio that can be distilled from this judgment is that a document is in the control of a party, even if in the possession of another, if the party has an enforceable right to access the document.

[229] Mr Biggs and Laguna Bay Capital Pty Ltd, as trustee for the Trading Trust, are parties to the shareholders’ agreement for Laguna Pastoral dated 31 October 2013. When the agreement was signed, the board of the company comprised Mr Biggs and

shareholders under the agreement were defined as being Laguna Bay Capital Pty Ltd as trustee for the Trading Trust and McGavin Holdings Ltd as trustee for the T and S McGavin Family Trust.

[230] The agreement requires the shareholders to act in good faith, in the best interests of the company and to be just and faithful in the parties’ activities and dealings with the other parties.

(a) Subject to clauses 4.2(b) and 4.2(c), each Shareholder may, at its own expense, inspect and make copies of all books, records, accounts and documents of the Company relating to the Business, assets or affairs of the Company.

(b) No Shareholder shall by reason of the document have access to any trade secrets or Confidential Information of the Company.

(c) The Company shall not be required to comply with any information rights in respect of any Shareholder whom the Board reasonably determines to be a competitor of the Company or an officer, employee, director or holder of 10% or more of the equity of a competitor of the Company.

[232] If Mr Biggs was effectively the alter ego of Laguna Pastoral, or at least the beneficial owner of the majority of shares in the company, it might well have been appropriate to treat him as having such a right to access the documents of the company as to be in control of them for the purpose of discovery. Even in that situation, there would have still been an issue as to the level of documentation that he might have had access to. However, this is not such a situation because Mr McGavin is also a director and, through his trust, has a 50 per cent shareholding in the company.

[233] Laguna Pastoral is an Australian company, so not subject to the provisions of the Companies Act, but it is likely Mr Biggs’ right of access to documents as a director could be limited in the same way as it would be with a New Zealand company. As a director, he would be under the normal obligation to act in what he believes to be the best interests of the company. He would be under an obligation to exercise powers as a director for a proper purpose.

[234] Ultimately, however, the determination I have reached over whether Mr Biggs should have to make further discovery of Laguna Pastoral documents, to the extent required by Mr Lyne, is not dependent on my view that he probably does not have control of the documents in a way that requires him to make discovery of them.

[235] For Mr Biggs to make available by way of discovery the further documents which Mr Lyne requests has the potential to put Mr Biggs in breach of his obligations as a director. It would be in breach of at least the spirit of the shareholders’ agreement in that it would require him to disclose trade secrets or confidential information of the company.

[236] I have weighed that in the balance in deciding that the further discovery sought against Mr Biggs would be oppressive and disproportionate. The conclusion I have reached is consistent with Kós J’s determination in Dixon v Kingsley. To effectively require discovery by the company itself would be inconsistent with the principles he set out governing discovery in relationship property litigation. There, Kós J held “significant inconvenience would be caused to an entity not directly involved in the proceedings”.²⁹That is the situation here.

[237] I have been provided with the letter of engagement from Grant Thornton to Laguna Pastoral of 23 January 2017 confirming the terms on which Grant Thornton had been engaged to value Laguna Pastoral. The letter of engagement confirms that the valuation assessment was to be used by the board of Laguna Pastoral “to consider their options under a potential employee share scheme and is intended for internal purposes”. Grant Thornton stated that:

For the purpose of the valuation, a defined fair market value is the price that might be negotiated in an open and unrestricted market between an informed and willing but not anxious buyer and an informed and willing but not anxious seller acting arms length.

[238] Mr Lyne has been intensely critical of the report and the fact that it was an indicative valuation only and thus based on unaudited information. It is however the

_{sort of valuation that is often relied on by a prospective vendor or
purchaser of a}

business or where property has to be valued to settle relationship property claims. This sort of report as to a “fair market value” would normally be of considerable assistance to parties attempting to resolve prospective claims.

[239] In appendix 1 to the letter of engagement, Grant Thornton set out the information they required for the purposes of the valuation.

[240] In appendix B to their report, Grant Thornton listed the sources of information they had relied upon in preparing their report. Ms Hedberg said, subject to confidentiality terms, Laguna Pastoral will provide the documents listed in appendix B.

[241] Those lists are relevant in indicating what sort of documents a major accounting firm regarded as relevant and/or sufficient to arrive at a fair market value for a business. Secondly, subject to confidentiality, the list in appendix B demonstrates the extent to which further information as to Laguna Pastoral will be available to Ms Biggs’ advisers.

[243] Discovery is sought as to documents relating to transactions in which Laguna Pastoral was involved for the benefit of the Trading Trust. Potentially, such discovery could be relevant to claims under ss 44C or 44 PRA if there was an intent in the transaction to defeat any potential PRA claim that Ms Biggs might have or if relationship property had been dealt with in a way that defeated her relationship property entitlement. The annual accounts for the trusts and for Laguna Pastoral will show what major acquisitions or dispositions of property have occurred within Laguna Pastoral and the trusts.

[244] Laguna Pastoral’s investment in rural properties has been for the benefit of the investors in the unit trusts. There is no allegation in Ms Biggs’ claim or on the evidence of Mr Lyne that Laguna Pastoral has invested in rural properties with the intent or effect of defeating Ms Biggs’ relationship property entitlement in respect of those investments.

[245] I consider the level of discovery Mr Lyne is seeking as to Laguna Pastoral is oppressive and disproportionate to the way such discovery would have assisted the parties and the Court to deal with the issues in these proceedings.

[246] Disclosure of much of the information or documents Mr Lyne is seeking about particular investors in the unit trusts, how they came to make their investments, or as to how Laguna Pastoral and its employees did their work is going to be of marginal assistance in resolving the issues in the proceedings. Discovery of documents as to such matters, to the extent required by Mr Lyne, has the potential to be damaging as far as Laguna Pastoral is concerned.

[247] Ms Biggs swore an affidavit as to discovery on 9 March 2018. It lists the extensive documentation held by Mr Lyne relating to Laguna Pastoral. Included in that material appears to be marketing or promotion material of the sort that Mr Lyne is seeking, for example:

[248] Ms Chambers argued that some of the discovery sought is needed to establish the extent to which Mr Biggs was involved in this business during the relationship. I consider the level of discovery Ms Biggs is seeking in this regard is oppressive.

[249] Ms Biggs will be able to provide specific information as to the extent which, if at all, Mr Biggs’ efforts with Laguna Pastoral were affected by any time he made himself available to help with the purchase and completion of the Queenstown property, the care of a young child or the extensive overseas holidays which she says they enjoyed. The parties have the benefit of the Laguna Pastoral Shareholders’ Agreement. It suggests that Mr Biggs’ commitment to the company was to provide or

procure loans to the company over the first five years. In contrast, Mr McGavin’s interests commitment was to be by Mr McGavin contributing his time and acting as CEO for a five year period. There is evidence that employees of the business made independent assessment of the time Mr Biggs contributed to the business as a proportion of Mr McGavin’s time.

[250] With that and other evidence available, it would be oppressive and disproportionate for Mr Biggs to provide the sort of discovery of documents relating to his work for the business to the extent Mr Lyne wants to help him reach a view as to the extent to which Mr Biggs was working in the business. Finding and producing the documents would be time-consuming. For Mr Lyne and his staff to go through all the documents would also be time-consuming and at significant cost to Ms Biggs, a cost which would be unnecessary having regard to the likely value to Ms Biggs’ case of such an examination.

[251] Certain documentation sought might demonstrate how Mr Biggs was involved in promoting the various investments to prospective investors but, to the extent this is necessary, it should be possible to obtain evidence as to that through the evidence to be given at trial and cross-examination without the need to refer to the detailed documentation that is sought here.

[252] Discovery, as sought, would require Laguna Pastoral to provide detail as to how it conducts its business in ways that would be disproportionate to the value such information would provide in resolving the claims between the parties. It would also require disclosure of communications or documents from investors at odds with the way those parties would have anticipated their communications with Laguna Pastoral would remain confidential.

[254] I thus decline to make any order for discovery requiring either Mr Biggs or the trustee defendants to discover any of the documents for Laguna Pastoral as sought by Mr Lyne. That decision is made on the basis that there will be voluntary provision of documents as set out in Ms Hedberg’s affidavit. Leave is reserved for Ms Biggs to

make an application for non-party discovery against Laguna Pastoral if that voluntary provision of information, on terms as to confidentiality set out in this judgment, does not happen. My expectation is, however, that such an application will not be necessary.

[255] Ms Biggs and her advisers already have considerable information as to how Laguna Pastoral operates its business, its actual and therefore potential profitability. [...].

[257] I also accept that Laguna Pastoral is concerned at the business risks associated with disclosing the identity of investors in the various unit trusts managed by Laguna Pastoral and from which it obtains an income.

[258] [...]. There is also an issue as to whether there has been an increase in the value of those interests during the separation. There may have to be a valuation of the Biggs’ interests at or close to separation.

[259] If there is a significant difference in values, there is likely to be an issue as to the extent to which any increase has resulted from developments in the business after separation and the contribution which either Mr or Ms Biggs may have had to that increase. It appears that, in those circumstances, the value of the Biggs’ interests will be based on the potential income that will be obtained from management fees. An objective assessment of that is likely to require some understanding of the sort of people and entities that have invested through the unit trusts. It would not be unreasonable for the parties’ accounting advisers to be given some general information as to that.

[260] Consistent with this, the information Grant Thornton said they required for the purpose of valuation included “top ten clients and suppliers for each year under review”. Ms Biggs already has some of this information. I was told of particular pension funds that had made such investments.

[261] Any disclosure as to this would again have to be dealt with carefully to respect the confidential relationship investors would expect to have with Laguna Pastoral. It is primarily the income stream that will be obtained from the fees investors pay that will be of most importance, so the information as to the nature and quality of investors should be of a reasonably high level and need not be specific as to all investors. It should be possible for Mr Moriarty and Mr Lyne to obtain the sort of information which they might be seeking through certain direct enquiries, perhaps of the accountant who has prepared the accounts for the unit trusts. It should be possible for information as to the nature and creditworthiness of investors to be put before the Court in a general way so that their actual identities can easily be kept confidential.

[262] It is because I consider the extent of the information which the experts will require in this regard is limited, that it should be possible for the experts to obtain information to the extent necessary without disclosure of documents, and because of the need for confidentiality that I consider discovery of documents identifying all investors and all dealings with them, as sought by Mr Lyne, would be oppressive.

Copies of all email correspondence between Mr Biggs and various named people, including Mr McGavin and Ms Hedberg, from 1 January 2010, copy of a print out of Mr Biggs’ calendar/appointment diary used for work purposes from 1 January

Copies of all pages from Mr Biggs’ passport from 1 January 2010 to the present time. Acknowledging Mr Biggs said he had surrendered his passport, Mr Lyne required “travel movement data showing entry and exit”.

[264] I accept that it would be difficult and onerous for Mr Biggs to try and recover all this information. The extent to which, in general terms, he was away from home on business during the relationship will be known to both Mr and Ms Biggs. The general nature of the activities of the Trading Trust and the Tim Biggs Family Trust will be apparent from the annual accounts. The extent to which he was involved in the business activities of trusts or other business will be a matter of broad-brush assessment without the need for the sort of detailed forensic examination that would

warrant production and close examination of the documents Mr Lyne seeks in this regard.

Copies of all tax return work papers used to prepare the 30 June 2009 to 2014

[265] Mr Biggs says there are no income tax returns outside Australia. Tax returns for 2009 to 2016 have been provided. There has been no evidential basis to suggest that Mr Biggs’ accountant, Mr Chotai, has been dishonest or unprofessional in the way he has prepared tax returns. If Mr Lyne had any real concerns as to this, he should have arranged to speak to Mr Chotai directly so that he could make an informed assessment as to how Mr Chotai approached the professional tasks required of him. Mr Moriarty has said in an affidavit that he found Mr Chotai to be of assistance in the discussions Mr Moriarty had with him. Given Mr Moriarty had been able to speak to Mr Chotai directly, I am confident that, if Mr Lyne had sought to engage with him directly, he would not have been denied such access.

Copies of all accounting work papers used or produced in preparing financial statements for the various entities associated with Mr Biggs.

[266] Ms Anderson has submitted that the accountants’ work papers belong to the accountant and are not subject to the control of Mr Biggs. That is the likely legal position³⁰but, with the disclosure that has already taken place and the state of the pleadings, I consider there would be little value in obtaining and providing these documents by way of discovery. The work the accountants have done is reflected in the annual accounts that have already been provided.

Copies of all current employment contracts, consulting agreements or similar between Mr Biggs and any party from 1 January 2010 to the present time, copy of Mr McGavin’s employment contract or similar with any Biggs’ associated entity. (Mr Lyne acknowledged Mr Biggs had said no such record existed outside the

³⁰Guttenbeil v Tower Insurance Ltd, above n 26, at [27]; NZX Ltd v Ralec Commodities Pty Ltd

Laguna Pastoral shareholders’ agreement so instead required “other documents evidencing Mr Biggs and Mr McGavin’s roles in the period 2010 to 2016”.)

Records of all remuneration and all benefits Mr Biggs received from eight entities.

[267] As to the last, Mr Biggs said his accountant had prepared a schedule which he had provided to Mr Lyne.

[268] The breadth of documents which Mr Lyne required in this regard is uncertain and oppressive. Mr Biggs has provided good information as to his income through the various annual accounts that have been provided and his tax returns. Issues as between the parties can be dealt with by the Court without further discovery as to these matters.

Documents recording rental income received from Noosa, Stradbroke Island and

[269] In his response, Mr Biggs said the lease for the Noosa property for the period

1 December 2014 to 1 December 2015 has been provided but, as no claim was then being pursued against those properties, the document required was irrelevant to issues before the Court. No documents existed regarding the Stradbroke Island or Argentina properties.

[270] There appears to have been no challenge to Mr Biggs’ evidence that he owned the Stradbroke Island and Argentina properties before his relationship with Ms Biggs began. Any income obtained from them would be his separate property. He has disclosed the lease for the Noosa property for a year. That lease must provide evidence as to the income potentially available from that property. The property itself is not the subject of any claim in these proceedings. No further discovery as to these matters is required.

As to the various entities with which Mr Biggs is associated, copy of general ledger extracts or printouts evidencing transfers of money to and/or from any entity in which Mr Biggs had a beneficial or legal interest.

Documents as to all inter-company or inter-entity accounts. Shareholder/director current accounts or term loans/advance accounts.

Copies of general ledgers from the period from incorporation to the present time.

Copy of all financial records evidencing and detailing all transfer of money to and/or from Mr Biggs and any entity in which he has a beneficial or legal interest (including without limitation, any company, partnership, trust or fund) during the period 1 January 2010 to the present date and “documents detailing all entities in which Mr Biggs was a director or trustee since 2009 to the current including where he only served for a limited time”.

[271] In response to the requests for these documents included in this collection, Mr

This category involves numerous transactions, which are already recorded in the defendant’s bank accounts and in the financial statements and ledgers for various entities. Compliance with the broad request, including providing all documents the various banks may be able to generate in relation to every single transaction over an eight year period, is unfocussed, overly onerous, disproportionate to any assistance rendered and likely to result in boxes of documents of no relevance whatsoever.

[272] Mr Lyne has acknowledged receiving relevant extracts of Mr Biggs’ loan account with the Trading Trust on 7 December 2016.

[273] Mr Biggs says transactions between various entities are adequately recorded for the purpose of these proceedings through the annual accounts that have been provided. He has also provided extracts of various general ledgers where they have been relied upon in relation to particular transactions he has referred to in his evidence. Mr Lyne’s evidence does not persuade me that he needs access to all the general ledgers he is seeking for any specific purpose related to issues that have been raised in these proceedings. Rather, it seems he would like to see the documents as a check or audit in case there is something that might support a claim that Ms Biggs or her advisers would like to pursue. Such speculative relevance does not justify imposing on Mr Biggs the burden of making such further discovery.

As to the Trading Trust and Biggs Family Trust, records showing how capital gains or other income distributed to Mr Biggs have been applied for the benefit of Mr Biggs.

[274] As to these, Mr Biggs says this information is provided in financial statements and tax returns which have been provided both for the trusts and for himself and as shown on his loan account ledgers with the trusts.

[275] This has already been the subject of detailed evidence in various affidavits with reference to annual accounts and bank statements which have been disclosed during the course of these proceedings. The disclosure which has already taken place has been sufficient for the parties and the Court to be able to deal with any issue relating to these transactions.

Laguna Sierra Pty Ltd – copies of financial statements for the company for the period since incorporation along with all accounting work papers used in preparation of financial statements each year.

Copy of US tax returns and notices of assessment for years of incorporation.

[276] Mr Biggs says financial statements have been provided in the form they exist. No income was earned prior to 2014, nil returns were filed before that for routine compliance only. All tax returns of income in existence have been discovered.

Park Road Partnership (commenced 15 November 2006, wound up 2013) for the years 30 June 2009 to dissolution – all accounting work papers used or produced in the preparation of the financial statements each year.

[278] Mr Biggs says financial statements have been provided, work papers are irrelevant and not needed, financial accounts and tax returns are accurate. I accept the disclosure that has already taken place has been sufficient.

Bank statements for the period from incorporation to the present time for Laguna Pastoral and the various companies associated with Laguna Pastoral, bank statements for the defendant trustees, the Trading Trust, Tim Biggs Family Trust,

personal bank accounts in Mr Biggs’ name from 1 January 2010 or later establishment to the present time.

Credit card statements for the period 1 January 2010 to the present date, “for all credit card accounts worldwide in the name of Mr Biggs or in the name of another person/entity for which Mr Biggs was an authorised cardholder”.

[279] As to bank statements, Mr Biggs detailed the instances, for example, as to the request for Argentinian bank accounts, where such statements did not exist. He detailed other instances where statements had been provided. He objected to disclosure of up to date statements on the basis such statements would be irrelevant.

[280] The information in bank statements for trusts and companies associated with Mr Biggs would be reflected in the annual accounts for those entities. I have not been presented with evidence sufficient to persuade me that there needs to be an audit of those accounts to the extent that would require Mr Lyne to have access to underlying bank statements. The way in which Mr Biggs has used personal bank accounts since the separation will be irrelevant either as to the scope or value of relationship property claims or other claims that Ms Biggs is making.

[281] As to credit card statements, Mr Lyne said there was no assurance that he had received a complete list of documents. Mr Biggs says he has sworn an affidavit in which he confirmed he has made all such statements available, at least up to separation. It is the debts or credits as at separation which will be of primary importance. I do not consider any further discovery is required for Ms Biggs’ claims to be fairly advanced.

Copy of records showing legal and beneficial owners of the Sopris Holdings Ltd.

[282] Mr Biggs said that, to the extent any such documents exist, they are publicly available but are not relevant to any issues in the proceedings. There is no evidence or anything in the pleadings to suggest otherwise and I decline further discovery.

Additional documents to bring discovery up to date. Mr Lyne seeks all documents in the 223 categories previously mentioned to the extent not already provided, through to the current date. Likewise, to the extent not already provided, details of all investments, transactions from 2009 to the current date for Mr Biggs and all entities in which he has a beneficial or legal interest.

[283] There appeared to be no dispute that the value of entities, other than Laguna Pastoral, will reflect the underlying investments of those entities which are largely a matter of public record, or apparent from the accounts. Disclosure of the annual accounts should therefore be sufficient to enable up to date valuations of those entities to the extent this may be necessary.

[284] Mr Biggs and his advisers should make available to Ms Biggs and her advisers the annual accounts for Mr Biggs and the annual accounts for the entities Mr Biggs is associated with, which it appears will generally be for the year ending 30 June, as soon as they are available. Mr Biggs has previously provided full disclosure as to those accounts. There is no reason to think he will not do the same now but leave is reserved for any party to seek further orders in regard to this if necessary.

[285] Such annual accounts will be based on the source information which is made available to the accountant. That source information will include bank statements so I make no direction that updated bank statements need to be provided.

[286] Transactions in which Mr Biggs has been involved personally during the separation, except to the extent they are reflected in the accounts for the various entities, will be irrelevant to the issues before the Court.

[287] The value of further discovery and whether what is sought is disproportionate or oppressive is not to be measured just by the potential monetary value of a claim that a party is making. Primarily, what must be considered is the time, expense and difficulty of providing such further discovery against the extent to which further discovery might assist the party seeking discovery to advance his or her case as to the actual issues in the proceedings.

[288] I decline to make orders for further discovery as sought. Mr Biggs’ disclosure of relevant documents has already been extensive. It has been sufficient for Ms Biggs and her advisers to identify the particular claims she wishes to make. Through the disclosure that has already taken place and with ongoing agreed disclosure, Ms Biggs will be able to put a value on those claims.

[289] To the extent Mr Lyne, through affidavits, has identified particular transactions he is interested in, they have been responded to by affidavit by Mr Biggs or Mr Moriarty with reference and disclosure to documents relevant to their responses. Mr Lyne has not identified particular transactions for which further information or documentation is required so his insistence on receiving documents, such as general ledger statements, is in the nature of a “fishing expedition” which is unlikely to significantly advance Ms Biggs’ case. Enquiring as to whether the further documents requested exist and then making them available by way of formal discovery would be difficult, time consuming and expensive. There would, in my view, also be considerable unnecessary expense for Ms Biggs if Mr Lyne and the team working with him had to then go through all such documents.

[290] In the circumstances of this case, Ms Biggs and her advisers should not have been proceeding on the basis Mr Biggs has been dishonest or less than frank in the information he has provided. They should not be proceeding on the basis that his professional advisers, in preparing annual accounts or statements for Mr Biggs or the relevant entities with which he is associated, misrepresented the information available to them from source documents. In the absence of any direct enquiry of the accountants who prepared those annual accounts or tax returns, Mr Lyne should not have proceeded on the basis the accountants had produced false tax returns in breach of their professional obligations and misleading as far as revenue authorities were concerned.

[291] Mr Lyne should have, long ago, sought to approach Mr Chotai directly to satisfy himself over any particular concerns he held and so he could make his own assessment as to whether the annual accounts could be accepted at face value.

[292] Mr Lyne’s insistence on obtaining source documents so that he can effectively audit, in considerable detail, how Mr Biggs had conducted himself in business and the companies with which he was associated had carried on business, must have been at considerable cost to both parties. On a number of occasions, Mr Lyne’s demands over discovery have been accompanied by a demand of Mr Biggs that he make significant payments on account of the costs Ms Biggs was incurring. Mr Lyne’s unreasonable discovery requirements have also delayed the pragmatic advancement of these proceedings, the potential value of mediation, and made resolution of the issues more difficult.

[293] As to Laguna Pastoral and trust documents, considerable progress has been achieved with the recent joining of the trustee defendants to the proceedings, the involvement of their separate legal representation and the efforts of Ms Hedberg. Their involvement has demonstrated what might be achieved with real engagement over what is at issue rather than what seems to have been an inflexible stance over process and discovery.

[294] The way in which Mr Lyne has pursued his demand for discovery has not been consistent with the principles to be applied, as set out by Kós J in Dixon v Kingsley.³¹

[295] To the extent Mr Lyne seeks discovery in excess of the disclosure which has already taken place or as otherwise agreed to, I consider the discovery he is seeking is unduly onerous and disproportionate to the actual or potential value that such discovery would provide in advancing Ms Biggs’ case.

[296] Further updating accounts may have to be provided prior to trial in the way Mr Biggs has provided earlier accounts to date. It is not necessary for me to make any particular directions or orders in this regard. Mr Lyne may have queries or issues arising out of those accounts for which he might seek an explanation or information. If he does, he should engage directly with Mr Biggs’ accountant, preferably in conjunction with Mr Moriarty. It would probably be sensible and efficient for those queries to be set out in writing so that Mr Chotai can properly and fully respond to

_{them. His responses should not necessarily have to be in writing if it
would be more}

efficient to deal with the issues on a face to face basis, with the meeting being recorded in some other way if those participating desired. The professionals involved should thus be dealing with any such issues on a cooperative and constructive basis rather than as adversaries or advocates for the parties they are assisting.

[297] On 15 January 2018, Mr Biggs issued his notice requiring Ms Biggs to answer interrogatories. On 30 January 2018, Mr Biggs filed an application for orders:

[298] Ms Biggs had set out the precise claim she was making in her amended statement of claim. The claim referred to particular claimed applications of relationship property to trust assets or separate property. The claim summarised the particular contributions to the marriage Ms Biggs said she was relying on for various claims she was making. Both parties could have assumed that, if they just got on with the proceedings in a substantive way, there would in due course be detailed evidence provided as to the claims she was making.

[299] Mr Biggs obviously had detailed knowledge of what had occurred in their marriage even though he would not have known all that she had been doing during the relationship, just as she would not have known all that he was doing. With the knowledge he did have, he would nevertheless, through his evidence and counsel’s cross examination, have been able to challenge the claims she was making to the extent necessary in a relationship property context without having to rely on her first providing particulars, further detailed information in response to interrogatories, or the sort of documentation he was seeking through the discovery application.

[300] I consider that, in pursuing these applications, Mr Biggs was adopting an approach to the litigation matching that of Mr Lyne with his discovery requirements. The steps being taken were disproportionate to what was reasonably required for the issues as between the parties to be properly determined in a manner that recognised s

[301] Mr Biggs’ application for discovery was as to 12 categories of documents. In a notice of opposition dated 14 February 2018, Ms Biggs said she would provide a list of documents as to 11 of those categories by 9 March 2018. She opposed the application as to category 10 for her to identify and list separately in her affidavit all documents exchanged between her and any lawyer:

[302] Ms McCartney filed submissions in support of the various applications on 7

[303] Ms Biggs swore an affidavit of documents and answered interrogatories in affidavits of 9 March 2018.

[304] I did consider Mr Biggs’ initial discovery as it related to the categories where there has in fact been an affidavit filed. Discovery as to the matters sought was not going to materially add to the information already available to the parties. Had there still been an issue over those categories, I would not have required discovery because I would have considered what was being sought was disproportionate and oppressive.

[305] On 22 March 2018, Mr Biggs filed an application for leave to have an application for particular discovery heard with the other applications. That application

sought orders requiring Ms Biggs to make verified particular discovery as to four categories of documents:

(a) documents showing when and how documents held by Mr Lyne were obtained by Ms Biggs;

(b) documents showing how these same documents came to be in the possession of Mr Lyne, including all correspondence between Ms Biggs, her solicitors and counsel, and between Ms Biggs, her solicitors, counsel and Mr Lyne in the periods 2013 to January 2016 with identification of the date of each individual communication/document;

(c) documents showing whether and when Ms Biggs sought and received legal advice in the period between November 2014 and 27 January 2016, with dates of each document; and

(d) documents, including dates, showing when Ms Biggs sought and received expert accounting advice between November 2014 and 27 January 2016.

[306] In a memorandum accompanying the application, Ms McCartney explained it was being pursued because it had become apparent, from Ms Biggs’ affidavit of documents, that she or Mr Lyne had documents about Laguna Pastoral which were not in the public domain and which would appear to have been obtained by Ms Biggs during the time she and Mr Biggs were living together. Ms McCartney said Mr Biggs will be contending that the parties were in two relationships, the second being from December 2014 to January 2016. Mr Biggs will be asking the Court to accept this second period was a relationship of short duration so that division from that relationship should be in accordance with contributions. Particular discovery was being sought as relevant to a submission that, if she was in communication with legal advisers during that second relationship, it would go to the “duration and quality” of the relationship and thus assessment of the parties’ non-financial contributions.

[308] During the hearing, Ms McCartney submitted the particular discovery was required because it could be relevant to costs. Mr Biggs might want to assert that he has incurred costs in responding to Ms Biggs’ requests for discovery as to Laguna Pastoral when, without telling him, she has already been in possession of certain documents she was seeking, for example roadshow presentations.

[309] As stated by Robertson J in M v B, in a relationship property context, parties are expected to cooperate fully in disclosing relevant information.³²If what is being sought is relevant and if these parties and their counsel were seeking to address matters economically, a simple and efficient way of dealing with this issue might well have been for Mr Biggs’ solicitor to have made an enquiry as to all of this to Ms Biggs’ solicitors and for there to be a response. Given the way this litigation is being conducted, I accept there might well not have been a cooperative response. In that case, questions as to this have ultimately been asked at trial without this having to be the subject of interlocutory argument and all the expense associated with that.

[310] During the hearing, Ms Chambers confirmed there was opposition to the application for further particular discovery but, because of the lateness of the application, sought leave to file submissions as to the application after the hearing. She did so on 9 April 2018, leading to Ms McCartney seeking leave to file submissions in response, submissions of 24 April 2018.

[311] Ms Chambers submitted that it illustrated “an approach to this litigation which is obsessive in regard to details, incredibly expensive for the parties and does not assist in resolving relationship property”. There is some real justification for that submission. A similar submission could be made, with justification, as to the way Ms Biggs has, through Mr Lyne, pursued discovery.

[312] In her submissions in reply, Ms McCartney sought to counter the strong submissions made by Ms Chambers as to the lack of any real justification for the further application. She went into further detail as to why she considered the particular discovery was required, suggesting, in addition to earlier arguments, that it could be

[313] There were submissions from both counsel as to whether the rules could or do require listing of privileged documents with the particularity that Mr Biggs was requiring. In that regard, I note that Ms Chambers had sought discovery from the trustees as to legal advice with the same particularity that she objected to in Mr Biggs’ application.

[314] In answering interrogatories, Ms Biggs said she did not see a lawyer in the period leading up to the first separation in December 2013. She did name the lawyer she engaged during the period of separation after December 2013. She did not refer to the dates she had seen the lawyer. She has not said what documents she has provided to lawyers during periods of separation. It is accepted that Mr Lyne was not engaged as an expert for Ms Biggs until after January 2016.

[315] In the affidavits I have read, both parties refer to their being separated in the period between December 2013 and November 2014. There is evidence that they continued to cooperate over various matters during that time. They had a child together. The fact they separated in January 2016 indicates that their resumed relationship was not a happy one. This has been reinforced through the personal information each of them has put before the Court about the other as these proceedings have continued.

[316] I have regard to what the parties and the Court already know about the nature of the marriage. Documents might show that, during the initial separation or during the resumed relationship, Ms Biggs was obtaining information that she thought would be of assistance in the event of a separation. Documents might show Ms Biggs sought legal advice during that time. All this will be of little consequence in any assessment of their respective contributions to the relationship during that second period. It is the nature of those contributions which will be material, not the reasons for them.

[317] I accept that, for Ms Biggs, Mr Lyne and Ms Biggs’ advisers to have to go through the extensive number of documents referred to in detail when they had been provided to solicitors or Mr Lyne, would take considerable time. I accept that, in detailing the dates, there would be some intrusion into the confidential relationship which a person is entitled to have with their solicitor. Disclosure of the particulars

sought is likely to be of little assistance to the parties and to the Court in dealing with what is really at issue in this case. With regard to costs, Mr Biggs already knows that Ms Biggs is likely to have had these documents at the time Mr Lyne was pursuing his discovery requirements.

[318] I consider the effort which counsel have had to expend on this particular issue is out of proportion to the way in which the further discovery might have assisted the parties to resolve the substantive issues between them as to property entitlements.

[319] Mr Biggs’ application for orders as to discovery, in terms of category 10 of his original application and with regard to the further particulars sought in his later application, is declined.

[321] After discussion of the background, Davidson J directed that those receiving documents from Mr Biggs should sign an undertaking as to confidentiality in a form proposed by Mr Biggs’ counsel. The precise terms of the undertaking are important but it essentially provided for:

• the documents not to be copied and not to be disclosed to others without the prior written consent of Mr Biggs or a direction of the Court;

• the documents to be destroyed or returned at the conclusion of the proceedings;

• anyone else having access to the documents to provide an undertaking in materially the same terms as that approved in the judgment.

[322] Davidson J directed there was to be no disclosure to Ms Biggs’ brother, Mr

[323] Mr Biggs and his solicitors proceeded on the basis that Davidson J’s directions meant there would be no disclosure of the documents to Ms Biggs.

[324] In a memorandum to the Court of 20 March 2018, Ms Anderson asserted the interim judgment specifically limited disclosure to counsel and experts and “there was no ambiguity in that regard”.

[325] Consistent with that belief, the Grant Thornton valuation of Laguna Pastoral shares and associated documents were provided to Mr Lyne specifically on the basis:

(a) they were being released only to Mr Lyne (and subsequently three staff), Mr Eggleston and Ms Chambers QC as counsel only on provision of the signed undertakings; and

[326] On 1 March 2018, counsel for the trustee defendants filed a memorandum asking the Court to deal urgently with what she claimed had been a breach of undertaking. In his ninth affidavit, Mr Lyne had referred to information in the Grant Thornton valuation report, with that affidavit then having been made available to Ms Biggs without the agreement of Mr Biggs and without her giving any undertaking, as it was submitted Davidson J’s direction had required. Ms Anderson sought an urgent hearing and directions to remedy the claimed breach of undertaking.

[327] On 20 March 2018, Mr Biggs, as trustee for the Tim Biggs Family Trust, filed an application for specific orders directing that documents to be discovered by any of the defendants relating to the two unit trusts which have been established by Laguna Pastoral for the benefit of potential investors, or documents discovered by Laguna

Pastoral or associated documents be produced for inspection pursuant to a detailed protocol set out by counsel, and further directions. The protocol would effectively:

(b) require the documents to be made available in hard copy form and to be available for inspection in an Auckland data room as arranged;

(d) require confidential information referred to in affidavits, evidence or submissions to be identified as such, not to be referred to in open Court or otherwise disclosed without leave of the Court, and not to be available to

[328] In a memorandum in support of that application of 20 March 2018, Ms Anderson said counsel for Ms Biggs had confirmed that Ms Biggs had deleted Mr Lyne’s ninth affidavit and had not disclosed information in it to any person. Counsel and another party had signed undertakings as required by the trustees. Ms Biggs’ solicitor had confirmed Mr Lyne’s ninth affidavit had not been distributed beyond the parties. Based on that confirmation, counsel no longer required an urgent hearing as to the breach of undertaking but sought a costs consequence for what had happened.

[329] The application also sought an order that Ms Biggs file an affidavit confirming she had deleted the ninth affidavit of Mr Lyne in its unredacted form and confirming she had not disclosed any confidential information relating to the unit trusts, Laguna Pastoral or associated companies as referred to in the application.

(a) there are obligations to the investors of the unit trusts not to disclose information about the investors or relating to the unit trusts, their performance and their terms; and

(b) Laguna Pastoral itself has business information and intellectual property it closely seeks to protect in terms of those it approached to invest

(effectively its customer base), strategy with respect to investment, its financial information, fee structure and the like.

[331] In a memorandum in response, Ms Chambers argued that the undertaking Davidson J had required should not be interpreted as preventing Ms Biggs from receiving copies of affidavits filed by her own expert in the proceedings. She also submitted that, if she was wrong in that submission, the Court ought to revisit the directions given, having regard to the background memoranda and correspondence between the parties leading up to Davidson J’s direction. Ms Chambers submitted that Mr and Ms Biggs had, before the dispute arose, contemplated that Ms Biggs would see the documents. (As to that, I note that whatever may have been the background to Davidson J’s directions as to an undertaking and who was to give it, the solicitors for the trustees made it quite clear when they made the documents from Laguna Pastoral available through a Dropbox link, it was on the basis that “neither the documents nor the information in them can be shared with Sophie Biggs in the absence of agreement or order of the Court”.)

[332] Ms Chambers submitted the whole approach to confidentiality was “over the top”. She submitted it was repugnant to justice for one party to submit evidence to the Court but for it to be withheld from other parties.³⁴She also submitted:

(a) Ms Biggs and her advisers would be hopelessly compromised if Ms Biggs could not see the documents on which she would be receiving advice;

(b) there was no evidence she would take advantage of the documents other than to resolve relationship property claims; and

[334] In her submissions, Ms Chambers referred to an observation by the Court of Appeal emphasising the need for an evidential foundation for claims of confidentiality.³⁵When confidentiality is properly put in issue and submissions are made as to why proposed measures to ensure confidentiality are either appropriate or unnecessary, it can be expected that such submissions will be supported by evidence to the extent evidence beyond the Court record is relied upon.

[335] Although it was not the subject of evidence, Ms Chambers told me of how Mr

Given was involved in business in a way that would not threaten Laguna Pastoral.

[336] Davidson J must have received submissions from counsel as to there being risks for Laguna Pastoral if Mr Given saw all the information as to that business that might be available through discovery. In his interim judgment, Davidson J said “there are clearly real issues of sensitivity about what is said to be the competition between the businesses of Mr Given and Mr Biggs”.³⁶

[337] In an affidavit, Mr Biggs referred to the way Mr Given is assisting his sister and has been copied into email communications he had received from Ms Biggs. There appears to be no dispute that he is assisting Ms Biggs with the proceedings.

[338] The only actual evidence I have seen as to Mr Given’s business or employment was Mr Biggs’ statement in an affidavit of 26 May 2017 where he described Mr Given as “a highly regarded finance executive earning an income of around AUD3 million per annum”.

[339] The evidence Ms Anderson initially referred to in support of the application over confidentiality was said to be in affidavits of Mr Biggs sworn 16 February 2017 and 15 March 2018.

[340] In his affidavit of 16 February 2017, Mr Biggs referred to the reasons provided by his solicitors for not disclosing documents sought from Laguna Pastoral at the time

management level relating to the investments made by the unit trusts, and what he described as confidential marketing material and fee arrangements with investors. He said it was a term of the trust deed between the fund manager and the unit trust holders that the fund manager would not disclose information about the investment which was confidential to the unit trust holders. He argued that documents relating to the purchase of assets, the budgets for those investments, fee arrangements with institutional and non-institutional investors and promotional material about those investments were all confidential to the unit holders in the trusts which had purchased various farms. He considered it would be a breach of trust for Laguna Pastoral to provide the documents.

[341] In his affidavit of 15 March 2018, Mr Biggs explained why and how he considered the release of the Grant Thornton valuation report could be prejudicial to Laguna Pastoral’s business.

[343] After the application was filed, Tiffany Hedberg swore her affidavit of 23

March 2018. Ms Chambers referred to her disparagingly as a book-keeper. Ms Hedberg is the chief financial officer of the Laguna Bay Group (non-farming), the fund manager of the fourth defendant trustee company, and has a bachelor’s degree in accounting and business. It was her evidence that she had worked with Mr Biggs for some 14 years. The way she describes the business activities Mr Biggs has been involved in indicates he has not operated with large organisations or with extensive support staff. Ms Biggs’ evidence, as well as Mr Biggs’, would suggest that his business activities over those 14 years have been largely successful. On all the evidence as it stands, the information and views Ms Hedberg has provided deserve respect.

[344] As already referred to, Ms Hedberg says she has been working with Laguna Pastoral’s internal counsel and general manager to obtain authorisation from the company to provide documents material to valuation for the purpose of the present litigation. She says Laguna Pastoral is “deeply concerned” about the ramifications to its investors, and therefore its own existence, if any of the information about the

investors and their investments “were mishandled or made public”. She said Laguna Pastoral is also highly sensitive as to potential loss of confidentiality of its own business documents and actual and forecasted financial performance.

[345] I also accept that the directors and shareholders of Laguna Pastoral, and not just Mr Biggs, are genuinely concerned as to the need for confidentiality. Not ensuring that need is respected would potentially delay the resolution of this proceeding to the detriment of the parties.

[346] Without evidence, I was not willing to proceed on the basis any disclosure to Mr Given of information about Laguna Pastoral, that will result from discovery appropriate for these proceedings, would pose a risk to the business of Laguna Pastoral. Mr Given is obviously someone experienced in business. He should be able to assist his sister in understanding the advice she receives from her lawyers and Mr Lyne as to how they propose progressing the proceedings and the potential risks and gains in her doing so. It seems to be accepted that he has been successful in his business activities and his experience in that regard is extensive. With such experience, it is likely he would be well aware of the significant costs and other drawbacks associated with long-running litigation. Importantly, given the way these proceedings have been pursued to date, he may well be of assistance to his sister with the decisions she has to make as to how these proceedings continue.

[347] I accept that it would likely be damaging to Laguna Pastoral for specific information about the identity of the investors in the Laguna Pastoral unit trusts, the value of those investments and the particular fee arrangements for individual investors to be in the public domain. That potential for damage is not lessened just because some investors have made public the particular investments they have made. It is likely an investor’s attitude about information it has chosen to make publicly available on its own terms would be distinctly different from how it would feel about information becoming available in a way that it had never agreed to, nor contemplated.

[348] It is in the interests of both Mr and Ms Biggs that commercially sensitive information about Laguna Pastoral is kept out of the public domain.

[349] The lawyers and accountants involved in these proceedings, as with Grant Thornton, are professionally obliged to honour the legal, professional and ethical obligations they have as to preserving confidentiality.

[350] Rule 8.30 High Court Rules strictly limits the way a party can use a document that has been made available by way of discovery and prohibits it being made available to any other party unless the document has been read out in open Court. A Judge can give directions to ensure this does not happen. For any party to act contrary to r 8.30 would be a contempt of Court and could justify a “claim on what might well be a strict liability basis for open-ended losses that could be proven to have flowed from unauthorised disclosure”.³⁷

[351] Here, it is part of the background that Davidson J required undertakings to be given. There was no appeal from that judgment. Undertakings were given as required and still apply. The undertakings have been important to Laguna Pastoral. In reliance on them, even if they might not have been strictly necessary, Laguna Pastoral has made key documents available and is proposing to provide more. It should thus expedite matters if similar undertakings are given by additional people who it has been agreed will be entitled to view the documents.

[352] Between 31 May 2018 and 14 June 2018, counsel for both Mr Biggs and the trustee defendants agreed that copies of documents provided to Mr Lyne could be shown to Ms Biggs and her brother, Mr Given, subject to specific further directions from the Court to ensure confidentiality. There also appears now to be agreement that, instead of using a data room, one copy of the documents will be provided to Mr Lyne.

[353] I accept the submission from Ms Anderson that it has not been uncommon in civil cases before the High Court, where there has been disclosure of confidential information, for there to be an order that the disclosure be limited to a party’s

³⁷Todd Petroleum Mining Company Limited v Vector Gas Trading Limited [2017] NZHC 1129 at

³⁸Dotcom v Twentieth Century Film Corporation [2014] NZCA 426 at [29], where the Court of

Appeal said “this is a standard form of confidentiality order in civil cases of this nature”.

Confidentiality restrictions are common on commercial proceedings and cases can be run in a manner that accommodate such restrictions, such as using a set of confidential briefs and a confidential bundle.

[355] It appears from the memoranda I have received recently that Laguna Pastoral, supported by Mr Biggs and the trustee defendants, is insisting that no one apart from the agreed named people in Mr Lyne’s firm, counsel and Ms Biggs’ agreed solicitor may see the confidential documents that are to be made available. Mr Lyne, through

[356] Mr Lyne has professional obligations to ensure he and all in his firm respect the confidentiality of documents and use them only for the purpose for which they have been made available. He has confirmed he has professional indemnity insurance which would be available should he or anyone in his firm breach those obligations and the confidentiality undertakings they have given. He, and it appears the accountants or employees who he anticipates will be assisting him, has already provided confidentiality undertakings. Given they have already done so, it would be reasonable for similar undertakings to be given by any further employees or accountants who might be dealing with the documents in a similar way. There may however be staff who have to assist, for instance, by way of assembling documents or putting together affidavits or briefs of evidence. Such people may not need to read or understand what is in the documents and are unlikely to have any awareness of the potential value or significance of the documents. There may well be staff assisting the solicitor or counsel for the parties in a similar way. The orders I make as to confidentiality should not prevent people within the respective offices from having such contact with the documents but any such staff will still be under strict confidentiality obligations, as their employers are.

[357] I consider it unreasonable for there to be a restriction on information in the documents or extracts from them being put before the Court to the extent this might

³⁹McGechan on Procedure (online loose-leaf ed, Thomson Reuters) at HR8.25.17(3).

be necessary. I recognise that, if information from confidential documents is to be put before the Court, this should be done in a manner which ensures the information can be used only for the purpose of these proceedings and access to the documents is limited. With senior counsel involved, the Court should not have to decide if and to what extent such reference to the documents in briefs of evidence or affidavits may be necessary.

[358] It is accepted that Ms Biggs and Mr Given are entitled to see the confidential documents at Mr Lyne’s office. It would be unreasonable and unnecessary for them not to have a copy of an affidavit or brief of evidence in which Mr Lyne or any other witness expresses an opinion about a confidential document that has been provided or to the information in such a document. However, it should not be necessary for them

to have the affidavit with that document attached. If it is necessary for them to view that document, they will be able to do so at Mr Lyne’s office.

[359] I direct that the documents which Laguna Pastoral has agreed to provide, on a confidential basis, are to be provided on the following terms:

(a) The defendants will provide for inspection one copy of the confidential documents to Brendon Lyne. They will be watermarked “Lyne Davis opinion – confidential document”. They are to be held at Brendon Lyne’s office and may be viewed at Brendon Lyne’s office by any of the following, provided they have given confidentiality undertakings in the form attached to Davidson J’s interim judgment dated 18 December 2017:

(b) No second copy is to be made of a confidential document except where, to the extent necessary, such a document is attached to an affidavit or brief of evidence, or included in a common bundle.

(c) If any confidential document has to be attached to an affidavit/brief of evidence or included in the common bundle, this is to be done so the document or documents are kept separate from the affidavit/brief of evidence or from the balance of the common bundle so that access to those documents can be easily restricted.

(d) All those entitled to view the documents, as set out above, must be able to see all affidavits filed in the proceedings. Where a confidential document, or a significant extract from such a document has been attached to an affidavit/brief of evidence or is to be included in the common bundle, those parts of the brief of evidence/affidavit/common bundle are to be available only for:

iii. the solicitor and counsel for Ms Biggs, and the solicitors and counsel for the other parties.

The confidential documents, or any significant extract from them associated with affidavits/briefs of evidence or the common bundle, are not to be provided to Ms Biggs or Mr Given but may be viewed by them at Mr Lyne’s office if this is necessary.

(e) Subject to (d), Ms Biggs and Mr Given may receive a copy of an affidavit to which documents have been attached or where there is comment on the documents. Neither of them is to make any further copy of such affidavit in which they refer to confidential documents, and neither is to release it to any party other than those who are entitled to receive the confidential documents.

(f) At the end of the proceedings, the copy of the documents provided to Mr Lyne will either be returned to the defendants or destroyed, at their election.

[360] I consider it unlikely there will be any real threat to the confidentiality of the information provided or any risk to the legitimate business interests of Laguna Pastoral or the investors in the unit trusts if information in the confidential documents is the

subject of submissions or oral evidence during a Court hearing. I am not willing to impose such a restriction on the way information in the documents may be referred to during the Court hearing but reserve leave to the parties to seek a direction as to that from the trial Judge.

[361] Laguna Pastoral is not being ordered to provide the documents on those terms but those are the terms which I consider should reasonably prevail if there is to be production of the documents on a voluntary basis.

[362] Affidavits filed in the proceedings indicate that, when the parties separated, Ms Biggs’ wish was to continue living in the family home with their daughter. Mr Biggs saw merit in taking advantage of contemporary market conditions and selling it. He proposed the proceeds of sale should be distributed equally between the parties on account of relationship property entitlements.

[363] On 2 February 2018, Ms Biggs filed an application for orders for the sale of the Queenstown property and interim distribution of property. There has never been any opposition to the sale of the home. It is now on the market with an asking price of $8,395,000.

[364] It seems the debts secured over the Queenstown property could rise to about

$700,000. There is uncertainty as to if and when the Queenstown property will be sold and what will be realised from it.

[365] In her application, Ms Biggs sought an order that, on settlement of the sale, 50 per cent of the sale would be paid to Ms Biggs after:

[366] She sought an order that the 50 per cent remaining would be held in a solicitor’s trust account in the parties’ names pending further written agreement between the parties or Court order.

[368] It was submitted for Ms Biggs that Mr Biggs should not have available to him any of the proceeds from the sale of the property because of the potential for him to have to pay to Ms Biggs a significant sum on account of other relationship property which he might hold in his own name, claims she might have under s 9A to a share in the increase of separate property, or as a result of the other claims she is making through these proceedings in respect of trust property.

[369] It is the evidence of Ms Biggs and her accountant that Mr Biggs’ interest in various business entities in Australia is worth many times the value of the Queenstown property. He is extensively involved in business in Australia, to a certain extent in New Zealand and with major businesses elsewhere. To be able to carry on in business successfully he would have to pay any judgment debt to Ms Biggs that might result from these proceedings. He would have to avoid bankruptcy. I consider the risk of his not paying any judgment debt is negligible. If Ms Biggs is to receive a share of the proceeds on sale on account of her relationship property entitlement, there is no reason why Mr Biggs should not also.

[370] On the other hand, Ms Biggs’ circumstances are different. She is now resident in Australia. There is no evidence that she holds significant property in her own name in Australia.

[371] There is still to be an accounting between Mr and Ms Biggs over the drawings both parties had against the Westpac mortgage facility during the separation, other payments of capital agreed to between the parties without prejudice as to how they should ultimately be brought into account, and the interest Mr Biggs has paid on the Westpac debt up to $600,000 pursuant to the agreed written interim arrangement of 23

[372] Given the significant costs that both parties have incurred and are likely to continue incurring in connection with the proceedings, potentially one of the parties may be ordered to pay the other a significant amount in costs when the proceedings are ultimately resolved. Ms Biggs could potentially have a debt to Mr Biggs for a significant sum. Present evidence suggests that the only fund she would have available to her to make such a payment would be her share of the proceeds of sale from the Queenstown property.

[373] When the parties first separated, Mr Biggs considered Ms Biggs was entitled to a half share in the home. With the filing of his counterclaim, he retreated from that position. He suggested that, applying s 13, Ms Biggs’ share of relationship property might be less than half. During the hearing, Ms McCartney advised me that, in deciding what should happen over the proceeds from the sale of the home, I need not take a potential s 13 argument into account. I do not do so.

[374] On 14 June 2018, I was advised by Ms McCartney of precise draft orders that she said could be made by consent as to terms to apply on the sale of the Queenstown property. One of the orders provided for a modest sum to be held back to cover accounting between the parties. It was apparent this was a proposed order to which there had been no response.

[375] On 18 June 2018, I received a memorandum from Ms Chambers which indicated, in strong terms, that not all the specific orders were agreed to. She referred

back to the orders that Ms Biggs sought in her original application. There was thus no agreement as to the terms of sale. I accordingly deal with what appeared to be in dispute at the hearing.

[376] Progress was made over one issue. In her application, Ms Biggs had sought an order that would have required the Court to deal with any dispute that might arise over the sale process. During the hearing, the parties, through counsel, agreed that any such dispute would be determined by an independent Queenstown solicitor whose decision would be binding on the parties. Since the hearing, counsel have provided me with an order as to this which can be made by consent.

[377] Ms Biggs also sought an order that, from the deposit, she be paid $19,985 plus interest to reimburse her for a debt she had to her brother. In an affidavit of 5 February

2018, she said that on 21 December 2017 she borrowed $19,985 from her brother to assist with sale costs, agreeing to repay him with interest at five per cent. She said that, with those funds, she had paid $12,679.23 in specified expenses.

[378] In his notice of opposition, Mr Biggs said he had no opposition to money borrowed from Mr Given being reimbursed so long as it was for items agreed between the parties for the sale of the home. He proposed that monies to cover expenses for the purpose of sale be drawn on a Westpac loan facility.

[379] Mr Biggs repeated this in an affidavit of 14 February 2018. He objected to paying the miscellaneous expenses totalling $12,679.23 which Ms Biggs said she had paid with the loan from her brother on the basis that they were expenses she could have met with the maintenance and capital that had been available to her, as agreed in August 2017.

[380] Through their agreement and orders of the Family Court of 23 August 2017, Mr Biggs had agreed to pay interim maintenance of $14,000 per month from 1

September 2017, with the last payment to be made on 1 February 2018. He agreed to pay the quarterly levy and rates on the Queenstown property to 1 February 2018 and

$5,000 per month beginning 1 September 2017 for legal/accounting costs. He agreed to the extension to the Westpac facility for $100,000 to be available to Ms Biggs.

[381] In a further affidavit of 21 February 2018, Ms Biggs said the costs that had been paid from her brother’s loan related to the sale. She gave further details of those costs, again for the total of $12,679.23. She said that the suggestion they use the Westpac facility was “ridiculous” and she doubted Westpac would be willing to make a further advance, but said she had not made any enquiries as to this. With that affidavit, she annexed an acknowledgement of debt dated 28 January 2018 to her brother. It referred to the $19,985 as money borrowed previously.

[382] The evidence is thus that Ms Biggs borrowed $19,985 from her brother of which $12,679.23 was spent on sale-related expenses. The evidence thus indicates that she is seeking to be reimbursed for a debt of $19,985 to her brother of which only

$19,985 that was in dispute. She suggested this issue could be left to the solicitor dealing with disputes in the sale process to sort out. Since then, Mr Biggs may have been willing to make further concessions so the Court did not have to be troubled with this issue but there is no agreement over this.

[384] Against that background, the reimbursement is to be for $15,985, including interest up to the time reimbursement is made.

[385] One of the orders proposed by Ms Biggs regarding the pending sale was that Mr Biggs would be responsible for outgoings on the Queenstown property, being rates, Council rates, insurance and interest on the Westpac facility. In his notice of opposition, Mr Biggs proposed that monies to cover expenses for the purpose of sale be drawn on the Westpac facility.

2018 because, as interim orders, they could apply for only six months. It was however not long after those orders expired that Ms Biggs told Mr Biggs she was moving to Australia and was in a de facto relationship.

[387] Neither party is now living at the Queenstown property. It is being maintained for the purpose of sale. The Westpac facility was used to make $100,000 available for Ms Biggs. It is reasonable for the facility to be extended to cover outgoings in the interim.

[388] I make the following orders as to the sale of the Queenstown property (which should be taken as a reference to the legal description for the property):

(b) Ms Biggs and Mr Biggs are to undertake all necessary steps to instruct AWS Legal, Queenstown to act as the independent lawyers on the sale of the Queenstown property on their behalf;

(c) Ms Biggs and Mr Biggs are to do all acts and things necessary so as to effect a sale of the Queenstown property for the best price reasonably obtainable and, in particular:

(ii) to provide copies of all written offers to Ms Biggs and Mr Biggs who are to attempt to agree in good faith any response to any offer; and

(iii) on or before settlement of the sale of the Queenstown property, Mr Biggs shall remove any notice of claim pursuant to s 42(1) PRA he has caused to be registered against the title;

(d) in the event Ms Biggs and Mr Biggs cannot agree and cooperate with respect to the response to a written offer, then the parties shall immediately instruct Nick Soper, solicitor of Anderson Lloyd, to resolve the dispute. The costs, initially, for Mr Soper shall be capped at $3,000 plus GST. The parties are free to make whatever representations they wish to Mr Soper. Mr Soper shall consider those representations together with any enquiry he wishes to make, and his decision shall be final. Mr Soper’s costs shall be equally shared between the parties provided, however, Mr Biggs shall pay Mr Soper’s full costs at first instance and Ms Biggs shall reimburse

the Mr Biggs from her share of the sale proceeds of the Queenstown property;⁴⁰

(e) following sale, the balance of the deposit, after payment of any reasonable real estate agents commission, is to be paid to AWS Legal for them to hold for the credit of both parties;

(f) the balance of the proceeds of sale shall be applied in the following order and priority:

(i) all costs and expenses of sale, including legal fees and disbursements, and agents’ commission;

(ii) payment to Ms Biggs in the sum of $15,985 on account of the debt which she has to Lachlan Given for $19,985 together with interest at five per cent, as recorded in a deed of acknowledgement of debt dated 28 January 2018. That payment is to be made in full satisfaction of any claim which Ms Biggs has to contribution from Mr Biggs in respect of that debt including interest;

(iii) repayment of all amounts owing to Westpac Bank secured by mortgage over the property;

(iv) payment to Mr Biggs of the total sum he has paid, if any, on account of Council rates, property levies, insurance, diesel and general maintenance for the period from 1 March 2018 to the date when the funds are available for distribution;

(v) from the balance then remaining, $1,500,000 shall be paid to each of Ms Biggs and Mr Biggs on account of their relationship property entitlement; and

(vii) the balance after payment of that sum shall be held in an interest- bearing term deposit in Mr and Ms Biggs joint names with AWS

⁴⁰This is as drafted for both parties by counsel and as submitted to me. The intention must be that Ms Biggs reimburse Mr Biggs for one-half of these costs so they are shared equally. I leave it to counsel to clarify what was meant.

Legal, solicitors, Queenstown, pending further written agreement between Mr and Ms Biggs or orders of the Court.

(g) the parties are to forthwith do all things available to them, using best endeavours to arrange an extension of the Westpac facility over the Queenstown property, which can be utilised to pay outgoings on the property, including Council rates, property levies, insurance, diesel and general maintenance. If, despite those best endeavours, such a facility cannot be arranged, Mr Biggs is to meet those outgoings. In that event, he is to be reimbursed from the proceeds of sale, before they are divided equally between the parties, for all such expenses he has met for the period from 1 March 2018 to settlement of the sale;

(h) subject to the orders in (f)(ii) and (f)(iv), at settlement, all steps necessary are to be taken in terms of payments and reimbursements to ensure that all reasonable costs of sale, including advertising costs, are paid by Ms Biggs and Mr Biggs equally;

(i) the distribution of $1,500,000 to Ms Biggs is subject to the requirement for her to reimburse Mr Biggs $200,000 for the payment which he is being ordered to make as an interim distribution later in this judgment; and

(j) leave is reserved to the parties to seek a variation of these orders if and when a sale of the Queenstown property has been achieved and there is certainty as to the price that has been obtained for it and the debt secured over it.

[389] In his interim judgment of 12 October 2017, Davidson J discussed in some detail the jurisdiction to make such an order, what he considered to be the relevant circumstances including that, after the hearing before him in the High Court, agreement had been reached in the Family Court on 23 August 2017 dealing with interim distribution and professional fees.

[390] Ultimately Davidson J reserved his position over the application for an interim distribution.

[391] Davidson J also discussed in some detail the application for the order that had been sought as to costs with reference to s 40 PRA and declined to make the order sought but did not formally dismiss the application “pending further development of the litigation”.

[392] There appeared to be a large measure of agreement over the principles to be applied on an application for an interim distribution under s 25A.

[393] The Court must generally be satisfied the amount sought by way of interim distribution will be less than the applicant’s ultimate share of relationship property.⁴¹

(b) the purpose and principles of the PRA including, in particular, the need to do justice between the parties;

(h) any delays in proceedings to date and whether those delays are attributable to either of the parties; and

(i) whether an interim distribution will cause further delays in finally determining the relationship property claim.

[395] Of importance, however, was the differing positions over whether the Court can order an interim distribution out of separate property or whether it had to be out of relationship property. There was High Court authority going both ways. Ellis J in SM v LFDB, and Fisher J in Cossey v Bach suggested interim payments could be ordered out of separate property.⁴²There has however, in Owen v Thomas, been a careful and detailed consideration by Duffy J as to whether s 25(3) PRA permits the Court to order an interim distribution to be made out of separate property or an interim distribution of one party’s separate property to another.⁴³

[396] With respect, I consider there is considerable force in Duffy J’s reasoning that, if s 25(3) PRA were to be used to allow separate property to be vested in another party, it would have the effect of drawing separate property into the relationship property pool in ways that would not be permitted or achieved through final orders.

[397] After the hearing, Ms Chambers referred me to a judgment of Judge Wills in the Family Court, Romanes v Romanes, proceedings in which Ms Chambers had been involved.⁴⁴Judge Wills discussed the differing approaches in ways that have been of considerable assistance to me. It would appear she saw the force in Duffy J’s analysis but held that s 25(3) PRA could be applied on the basis “the order must relate to relationship property or property that is separate but susceptible to being drawn into the pool of relationship property”. It is not necessary for me to decide, in this instance, whether s 25(3) PRA can be applied in this way. If it is a permissible interpretation, then of crucial importance would be the Court’s assessment as to the degree of certainty or otherwise about the applicants’ entitlement under the Act.

[398] In Romanes, the parties had been married for 30 years. They had four children. The husband had personally held shares in a range of companies before the marriage so they were his separate property. Over the marriage, the value of the husband’s interests in the various companies had grown to over $60 million. One of the companies had bank funds in excess of $26 million. The wife had very little, if any,

_{capital available to her. The Judge made an order for a substantial
interim payment on}

account of the wife’s likely entitlement to a share in the increase of the husband’s separate property.

[399] In this judgment, it is unnecessary for me to make any assessment as to the strength of Ms Biggs’ various claims by which she seeks to obtain a payment on account of wealth which belongs to trusts associated with Mr Biggs or the increase in value of his loan accounts with trusts. Mr Biggs says the increases are largely derived from capital gains made by those trusts on investments which the trusts had made before his relationship with Ms Biggs began. This is not, however, a case where it can be said with certainty that Ms Biggs will be entitled to significantly more than a half share of what is, at this stage, agreed to be relationship property.

[400] Mr Biggs does however have a relationship property entitlement in respect of the Queenstown property and also superannuation investments, as does Ms Biggs. Pursuant to s 25A(3) PRA, I can order him to make a payment against his interest in that relationship property.

[401] There may be understandable delays or difficulties in Mr Biggs being able to realise his interest in that relationship property. Despite some suggestion to the contrary, I do not accept that it is a prerequisite for an interim payment from one party to be that he has an immediately realisable interest in relationship property which can be utilised in making the required payment. Whether or not he can do so may be relevant in exercising the discretion over whether there should be such a payment.

[402] In her submissions, Ms Chambers said the orders were necessary because there was no sign yet of a buyer for the Queenstown property. She submitted that, if the making of such orders was otherwise appropriate, the Court should not avoid making the appropriate order just because the extent of relationship property at issue between the parties is in dispute. She submitted, referring to evidence, that Mr Biggs could not credibly claim that he could not access capital to the extent required to make the payment sought.

[403] Ms Chambers submitted the Court should follow the approach adopted by Ellis

J in SM v LFDB. She accepted that any payment that might have to be made for costs

would be without prejudice as to how that payment would be brought into account on the final resolution of all disputes between the parties. She also accepted that, if any payment was to be made by way of an interim distribution, it should be brought into account against the share of the proceeds of sale from the home that Ms Biggs would be entitled to on settlement of that sale.

[404] Ms McCartney submitted it is of significance that Ms Biggs has had access to

$300,000 of capital to assist with legal and accounting expenses so far and this was not a case where a husband had been obstructive in attempting to resolve issues.

[405] In his affidavits, Mr Biggs has described how he is involved in the significant businesses and legal entities that existed before his marriage, and the way he was able to utilise his interests in those entities during the marriage. I am satisfied that Mr Biggs has the ability to make a further significant payment to Ms Biggs which will assist her with payment of the legal costs she will inevitably have to incur to resolve relationship property claims.

[406] Against the background of this litigation to date, I consider it important that the payment is made in such a way that it is clear to Ms Biggs and her advisers that, subject to any award of costs the Court might ultimately make, the costs she incurs will have to be paid out of her share of relationship property or what she obtains from the other claims she is making.

[407] If it can be achieved without unfairly prejudicing Mr Biggs, the payment which

Mr Biggs is required to make to assist her with costs should not be so small as to leave

Ms Biggs in such a financially disadvantaged position that financial stress makes it difficult for her to receive the reasonable and necessary legal and accounting advice she requires to resolve her claims on an adequately informed basis.

[408] On the other hand, the Court should not require Mr Biggs to assist with Ms Biggs’ legal costs in a way which encourages her and her advisers to think that there is an unlimited fund at her disposal which she can use to pursue claims through litigation in a way which, on its face, is at odds with one of the principles of the PRA, namely, “that questions arising under this Act about relationship property should be

resolved as inexpensively, simply and speedily as is consistent with justice”.⁴⁵The Court should not allow Ms Biggs to pressure Mr Biggs to enter into an unjust settlement of claims through a succession of interlocutory applications, the pursuit of discovery to an extent that would be oppressive, or through requiring him to fund her legal and accounting costs at the level they are here.

(a) Mr Biggs shall pay to Ms Biggs the sum of $200,000, that sum to be paid within two weeks;

(b) that sum is to be brought into account against Ms Biggs’ share of relationship property or any other sum that might be due to her from Mr Biggs on the ultimate resolution of these proceedings but without prejudice to any costs order that the Court might ultimately make when the proceedings are resolved; and

(c) if the Queenstown property is sold before the proceedings are fully resolved, Ms Biggs is to pay to Mr Biggs out of the $1,500,000 share of the proceeds, as provided for in [391](f)(v), the sum of $200,000.

[410] I decline the application for any further interim distribution of property to Ms

[411] Those orders are made to finally determine Ms Biggs’ application currently before the Court as to costs and an interim distribution. The Court does not expect to have to deal with any further application in this regard before the hearing of these proceedings which is scheduled to begin on 8 October 2018.

[412] After Davidson J issued an interim judgment of 12 October 2017, counsel for

(a) ... subject to the usual restrictions and endorsements contained in s 35A PRA and ss 11B to 11D FCA so that the reporting must be without reference to or any identification of any information which will identify [the child of the marriage]

(b) directing that these proceedings shall proceed under [fictitious names] and shall otherwise be reported with redaction/anonymisation restrictions.

[413] In his judgment of 18 December 2017, Davidson J noted that his earlier interim judgment was “not directed to that child except for reference to maintenance and the factual circumstances of the parties”.⁴⁶He made orders:

11B-11D FCA apply so that there should be no particulars reported which identify [A] (whether as [A] or as a child of the marriage) and any reporting will make no such reference to a child of the marriage whatsoever. As these proceedings develop, there may be necessary reference, where the fact of there being a child of the marriage is contextual, and will have to be mentioned for judgment to be properly understood. That issue can wait.

[28] The interim judgment of 11 [sic] October 2017 will be recalled to bear such order, and it will apply to this and any further orders or judgments of the court, until any further order addressing the issue.

[414] His Honour thus did not expressly decide whether ss 11B-11D Family Court Act required the suppression of the parties’ true names on the basis that use of their names would identify their child but his judgment of 12 October 2017 was published under the parties’ true names, and his judgment of 18 December 2017 referred to the parties by their true names.

[415] Before me, Ms McCartney, for Mr Biggs, sought orders as originally asked for before Davidson J. In her submissions, Ms Chambers accepted that Davidson J did not finalise the issue.

[416] The proceedings before the Court are all to do with the property interests of the parties, either directly or through trusts with which they are involved. The Court is not being asked to resolve any issues over the care of their child. The fact the parties have a child was however an important aspect of their relationship while they were

_{together. In this judgment, there is a reference to the parties having
a child but the}

proceedings are not about the child. In that sense, the judgment does not “concern” the child. In this way, the property proceedings between the parties are little different from many relationship property cases that come before the courts.

[417] The issue is whether, in such circumstances, there must be suppression of the parties’ names.

Sections 11B to 11D of the Family Court Act 1980 apply to the publication of a report of any proceedings under this Act—

(1) Any person may publish a report of proceedings in the Family Court. (2) Subsection (1) is subject to subsection (3).

(3) A person may not, without the leave of the court, publish a report of proceedings in the Family Court that includes identifying information where—

(iii) is an applicant in the proceedings. (4) However, subsection (3) does not apply to—

(i) is genuinely of a professional or technical nature (including a publication that is intended for circulation among members of the legal or medical professions, officers of the Public Service, psychologists, counsellors, mediators, or social workers); and

(A) any person under the age of 18 years who is the subject of the proceedings, or who is referred to in the proceedings:

(D) any school that a person who is the subject of proceedings under the Oranga Tamariki Act 1989 is or was attending, or any other particulars likely to lead to the identification of that school:

(6) Every person who contravenes this section commits an offence against this Act and is liable on conviction,—

(a) in the case of an individual, either to imprisonment for a term not exceeding 3 months, or to a fine not exceeding $2,000:

(b) in the case of a body corporate, to a fine not exceeding $10,000. (7) Subsection (6) does not limit the power of a court to punish any

(8) This section is subject to any other enactment relating to the publication or regulation of the publication of reports or particulars of a Family Court proceeding.

(1) For the purposes of section 11B, identifying information means information relating to proceedings that includes any name or particulars likely to lead to the identification of any of the following persons:

(d) a person who is related to, or associated with, a person referred to in paragraphs (a) to (c) or who is, or may be, in any other way concerned in the matter to which the proceedings relate (for example, a support person for a party).

[421] Ms Chambers submitted that the issue over suppression or anonymisation of the parties’ names is to be determined with due regard to the way the Court of Appeal has, over recent years, emphasised the presumption in favour of open justice. She also referred to statements to the same effect from Glazebrook J in the Supreme Court in Scott v Williams.⁴⁷

[422] In response, Ms McCartney referred to cases where the Court of Appeal had, despite this, approved suppression. She emphasised that suppression and anonymisation were being sought because they were required by ss 11B-11D Family Court Act.

[423] In Sanders v Sanders, the Court of Appeal said the scope of the provisions dealing with the report of Family Court proceedings in ss 11A-11C Family Court Act, particularly in relation to relationship property proceedings, were issues of some novelty and importance.⁴⁸It accepted there would be some benefit in the Court of Appeal considering the criteria to be applied in the exercise of the discretions provided for in those provisions. It does not appear they have had the opportunity to do so since making those comments.

[424] In Sanders v Sanders in the High Court, Stevens J said that, with the enactment of s 35A PRA:⁴⁹

[58] The default position is now reversed. Previously the rule was no publication, but leave could be obtained. Now, accredited news media reporters may be present in court and may report on proceedings, but leave is still required in certain types of cases.

[59] The concept of greater openness and transparency in Family Courts and in respect of family cases was intended to enhance justice and public confidence in the judicial system, as discussed at [34]-[37] above. Thus, the media has a legitimate role as the eyes and ears of the community. The legislation seeks in part to demystify the processes of the Family Court and cases involving family matters.

[425] Applying s 11B(3) literally, there will be a prohibition against any report of proceedings in the Family Court where there is any sort of reference to a child in the proceeding. The proceeding will not necessarily have to be about the child or deal with any issue concerning the child. That interpretation is required because s 11B(3) prohibits publication of a report of proceedings where a child under the age of 18 years is the subject of a proceedings, a party of the proceedings or is referred to in the proceedings. It is the interpretation that was adopted in the High Court by Stevens J in Sanders and by Judge Burns in DFT v ASR,⁵⁰although the latter was concerned with whether or not a “vulnerable person” was the subject of the proceedings.

[426] Here, there has been a reference to a person under the age of 18 years in the proceedings. Pursuant to s 11B(3), without leave of the Court, there must not be a report of the proceedings that includes identifying information. Section 11C defines identifying information as including any name or particulars likely to lead to the identification of a party to the proceedings, a person who is the subject of the proceedings, or a person who is related to or associated with such people. Without leave, I thus accept that, pursuant to s 35A PRA, and ss 11B(3) and 11C(1) Family Court Act, there cannot be publication of any report of these proceedings in which the names of the parties are included. Ms McCartney even went so far as to suggest these provisions could require suppression of Laguna Pastoral’s name.

[427] I agree with Davidson J that s 11B(3) is about reflecting the right of children to have their privacy respected and for their interests to be treated as a mandatory consideration. There is thus a particular need, as referred to by Stevens J in Sanders, to consider the nature of the proceeding, the particular age of a person under 18, that child’s special characteristics including medical, learning or other disabilities, whether and to what extent they know of the proceedings and any likely effect on them of

[428] The child here is of an age where neither she nor her peers are likely to have any real understanding or knowledge of any report that might be published about the proceedings. Any reporting that does occur is most likely to happen in New Zealand. The child is now living in Australia. Because of the importance of openness and transparency in the way courts deal with relationship property proceedings, it is important that there can be a report as to the result of these proceedings, as reflected in any judgment of the Court, with publication of the names of the parties to provide proper context and avoid speculation about the identity of the parties, as Stevens J considered was appropriate in Sanders.

[429] It is somewhat surprising that Ms Biggs, through her counsel Ms Chambers, is so strongly arguing the parties’ names should be published. As might be expected with this sort of litigation, in this judgment there is inevitably reference to matters of a personal and private nature. One might have expected both parties to prefer anonymisation.

[430] In Dixon v Kingsley, Ms Chambers argued for an end to the anonymisation that had been provided for in the Family Court. Kós J maintained anonymisation but said “I am left with the uncomfortable sense that a change of stance by the respondent was adopted for extra-curial, tactical purposes”.⁵¹

[431] When this issue was before Davidson J, he noted Ms Chambers’ submission that publication of names would help promote settlement. Davidson J considered this an “unprincipled basis” on which to consider whether there should be suppression.⁵²

[432] I too consider that, to actively promote publication to obtain a tactical advantage in that way, would be akin to that of the husband who seeks to restrict a wife’s eventual settlement through delaying Court processes and attrition.

[433] I have a concern that publication of the parties’ names is being sought for that sort of reason here. Despite that, the principle of open justice should prevail.

[434] I thus grant leave, pursuant to s 11B(3) Family Court Act, for publication of this judgment with identifying information as referred to in s 11C(1). That leave is granted on condition there is no mention in any report of the proceedings to the name of the parties’ child.

[435] After release of Davidson J’s interim judgment of 12 October 2017, counsel for Mr Biggs, by memorandum, sought an order directing that all information in the proceedings about the parties, any further parties to be joined, the investments made by the parties or interests associated with them, the positions of the parties in the proceedings, property, the property’s value, the location of the property and the earnings of the parties are confidential and may not be disclosed.

[436] In his interim judgment of 18 December 2017, Davidson J discussed the submissions that had been made in relation to this, relevant legislation and judgments that had been referred to him. He concluded:⁵³

There is no automatic order for non-disclosure of what may otherwise be confidential information, although that may well emerge in the context of further orders, directions or judgment of the Court. At this stage, there are claims to what is said to be relationship property, which include various assets, and the proceedings are still working through the interlocutory stages. I do not consider there is a case made out for such concern as to confidentiality or commercial sensitivity to found the application. I therefore decline to make any such order. I recognise, however, that that position may well arise as these proceedings develop.

[437] Since then, by consent, the second, third and fourth defendants have been joined as parties to the proceedings.

[438] No party has renewed the application in this regard. There is however reference in this judgment to one matter which is sensitive and where publication of such a matter could be to the prejudice of all parties to these proceedings, and also to people who are not party to these proceedings. Those parts of the judgment are suppressed until further order of the Court and will be redacted from the judgment

[439] The trustee defendants, through their counsel, sought an award of costs against Mr Biggs to recognise the way they submitted Mr Biggs had breached Davidson J’s directions as to confidentiality and undertakings that had been given. Once the trustee defendants’ concern about what happened was brought to the attention of Ms Biggs’ solicitors, they did what they could to rectify the situation. In all the circumstances, I am not making any order for costs regarding this. I do not require Ms Biggs to file an affidavit confirming she did not disclose information in Mr Lyne’s affidavit about the Grant Thornton report to anyone else.

MR BIGGS’ APPLICATION FOR FURTHER PARTICULARS/ORDER REQUIRING ANSWER TO INTERROGATORIES

[440] Ms McCartney advised at the beginning of the hearing that these applications were no longer being pursued. Mr Biggs had already filed an affidavit answering the interrogatories.

[441] Through Mr Biggs’ application of 30 January 2018 and submissions, Ms McCartney contended that some of Ms Biggs’ claims were in the Court’s equitable jurisdiction so that r 18.7 High Court Rules required Ms Biggs to seek directions as to service and representation. Rule 18.8 permitted the Court to make any orders for service and representation as it thought just.

[442] I accept that Ms Biggs’ claim, that Mr Biggs is the beneficial owner of all the assets in the various trusts, is a claim in the Court’s equitable jurisdiction. However, I accept the submissions made by Ms Chambers that this did not require Ms Biggs to seek directions as to service and representation.

[443] The rules Ms McCartney referred to apply to part 18 proceedings. Part 18 begins:

(a) proceedings in which the relief claimed is wholly within the equitable jurisdiction of the court ...

[444] This proceeding involves relief sought under the PRA which does not fall under r 18.1, either under the general provision referred to or by reference to 18.1(b)-(d). It is a general proceeding commenced under part 5 after transfer from the Family Court.

[445] Rule 4.23(2) High Court Rules applies to general proceedings of the sort here: “[t]here is no need to join persons beneficially interested in a trust or an estate to a proceeding because the trustees, executors, and administrators represent those persons”.

[446] Ms Chambers acknowledged there is a discretion to order that a beneficially interested person is made a party, either in addition to or instead of the trustees, executors or administrators. I accept, as she submits, that this will be required only in an exceptional situation where the interests of the trustees and the beneficiaries are not aligned. Here, they are aligned.

[447] The only point in requiring service on the original purported settlors or trusts or beneficiaries would be if they might need to be separately represented in the proceedings. Here, both Mr Biggs and the trustees are resisting the claims that are being made against or in respect of the trusts. The interests of the original settlor and beneficiaries are thus being well represented in the proceedings. Adding them as parties would serve no useful purpose but could simply cause delay and result in more expense, contrary to the objective of the High Court Rules and the principles and purpose of the PRA.

[448] There is no need for me to make any directions as to service or representation as suggested for Mr Biggs.

[449] Except as to the costs sought by the trustee defendants referred to in [439], costs on the various applications that have been dealt with in this judgment are reserved.

DAT Chambers QC, Barrister, Auckland MJ McCartney QC, Barrister, Auckland JF Anderson QC, Barrister, Auckland

High Court of New Zealand

Biggs Biggs [2018] NZHC 1592 (29 June 2018)