GDP I LLP v Melview (Kawarau Falls Station) Investments Limited (in rec) HC Auckland CIV-2010-404-007701 [2011] NZHC 1628 (21 October 2011)

Last Updated: 23 November 2011

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CIV-2010-404-007701}

BETWEEN GDF I LLP Plaintiff

AND MELVIEW (KAWARAU FALLS STATION) INVESTMENTS LIMITED (IN RECEIVERSHIP)

Defendant

CIV-2010-404-007702

AND BETWEEN ALAN FALL Plaintiff

AND MELVIEW (KAWARAU FALLS STATION) INVESTMENTS LIMITED (IN RECEIVERSHIP)

Defendant

Hearing: 21 October 2011

Counsel: MT Davies for Plaintiffs

PDM Jones for Defendants

Judgment: 21 October 2011

_{JUDGMENT OF ASHER J}

Solicitors/Counsel:

Meredith Connell, DX CP24063, Auckland 1140. Email: [e-mail] Minter Ellison Rudd Watts, DX CP24061, Auckland 1140. Email: [e-mail] Chapman Tripp, DX CP24029, Auckland. Email: [e-mail]

AR Galbraith QC, PO Box 4338, Shortland Street, Auckland 1140. Email: [e-mail]

JA Farmer QC, PO Box 1800, Shortland Street, Auckland 1140. Email: [e-mail]

GDF I LLP V MELVIEW (KAWARAU FALLS STATION) INVESTMENTS LTD (IN RECEIVERSHIP) HC AK CIV-2010-404-007701 21 October 2011

[1] The plaintiffs complain of significant delays in discovery by the defendant in each proceeding (“the defendant”) and seek unless orders.

[2] The initial discovery and inspection orders made by Allan J on 8 April 2011 were not complied with. Mr Johns for the defendant has frankly acknowledged to the Court today that the initial instruction from the defendant was not to progress discovery. The advice was that the reason was financial; such resources that were available were to be put into other endeavours. Mr Johns informs me that the change resulting from BOS International (Australia) Ltd (“BOSI”) assuming the burden of funding the defendant. I make it clear this was a general observation and that Mr Johns did not and is not able to give an exact date when BOSI took over that funding.

[3] The position changed when BOSI became involved. That position had arisen when the matter came before Venning J on 5 August 2011. He recorded that it had been acknowledged by Mr Stewart QC, senior counsel for the defendant, that there had been significant delays in the discovery process. He noted that on Mr Stewart’s advice a further 10 weeks was required to complete the discovery exercise. Venning J also recorded Mr Stewart’s acknowledgement that there would be cost consequences for the delay.

[4] In the directions that Venning J made he did not make a specific direction that a list of documents be filed within a certain time, but directed the defendant to provide regular progress reports regarding discovery. He also directed that the defendant was, by Monday 22 August 2011, to provide a list of key documents it intended to rely on.

[5] Mr Johns has advised me that every effort has been made to comply with Venning J’s direction. Minter Ellison at present has at least six staff working on the task of discovery and at times has had greater numbers. From what he has told me it would appear that from the time when Venning J issued his Minute every effort has been made to comply with discovery. I also accept what Mr Johns tells me; there have been difficulties in preparing the list which involves tens of thousands of documents held in various places.

[6] Nevertheless, the plaintiffs are understandably most concerned that the 10 week timeframe which expired on 14 October 2011 has not been complied with. Moreover, it is submitted with some justice that the list of key documents, while provided in time, is very short and of little assistance to the plaintiffs.

[7] Venning J has already indicated that there will be a cost penalty arising from the initial delay. Nevertheless, in his memorandum filed yesterday and in oral submissions today Mr Davies asks for unless orders directing that the defendant will be debarred from defending if discovery is not provided within the proposed timeframe. Mr Johns in response states that the realistic date for compliance is four weeks out on 18 November 2011.

[8] The plaintiffs are entitled to the support of this Court in its endeavour to have this proceeding brought to a hearing within a reasonable timeframe. The defendant at least at an earlier time has acted quite contrary to the spirit of the rules in delaying discovery. Against this I have to balance the efforts that have been made over the last 11 or 12 weeks to comply. I also accept Mr Johns’ point that the unless orders were only sought yesterday and the first complaint about the quality of the list of key documents was also only made yesterday.

[9] In the circumstances I am not prepared to make true unless orders, but I am prepared to go some way towards them.

[10] The defendant (who seeks to provide a single list of documents rather than sequential lists as proposed by the plaintiffs) is to file a list of documents by 5pm, Wednesday 16 November 2011. The matter will be listed in the commercial list for Friday, 18 November 2011.

[11] The defendant through its solicitors will provide weekly email updates starting next Friday, 28 October 2011 to the plaintiffs’ solicitors advising on progress.

[12] Should the defendant not be confident on Friday, 11 November 2011 of compliance with the discovery orders it must give the plaintiffs notice of this. If

there is non-compliance it must file an affidavit setting out in detail the reasons for that non-compliance by Wednesday, 16 November 2011.

[13] The plaintiffs may apply at any time for an order debarring the defendant from defending the proceeding on the basis of non-compliance with this discovery order. The defendant is on notice that that application may well be dealt with and determined on Friday, 18 November 2011 in the event of ongoing default.

[14] There is also an outstanding costs application in relation to a confidentiality order that was sought by the defendant but later not pursued. There are already directions in place in relation to this and I am further informed that there are positive discussions proceeding between the parties that may resolve the issue.

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Asher J