Reynolds v Calvert [2014] NZHC 1663 (15 July 2014)

Last Updated: 18 July 2014

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2012-412-000910 [2014] NZHC 1663

BETWEEN GRANT BRUCE REYNOLDS as liquidator of JAMES DEVELOPMENTS LIMITED (in liquidation)

Plaintiff

AND HILARY JANE CALVERT and HGW TRUSTEES LIMITED as Trustees of Frongopolus Trust of Dunedin

First Defendants

AND CHRIS JAMES Second Defendant

Hearing: 13 June and 7 July 2014 (By way of telephone conference) Appearances: A C Sorrell for Plaintiff on 13 June 2014

M J McCartney QC for Plaintiff on 7 July 2014

M R Sherwood King for Defendants

Judgment: 15 July 2014

_{JUDGMENT OF DUNNINGHAM J}

[1] This is an application by the plaintiff for orders:

(a) that the Court inspect certain documents in the first defendants’ fourth affidavit of documents;

(b) that the Court inspect certain documents in the second defendant’s

first affidavit of documents;

(c) following inspection that, unless the first defendants file a compliant affidavit of documents and give inspection, their defence is struck out

_{and judgment sealed;}

REYNOLDS v CALVERT and ANOR [2014] NZHC 1663 [15 July 2014]

(d) following inspection, that the second defendant files a compliant affidavit of documents and gives inspection; and

(e) that solicitor/client costs are awarded.

[2] The essence of the plaintiff’s application is that, despite a protracted discovery process requiring Court orders for the defendants to provide further and better discovery, the further lists provided incorrectly claim litigation privilege in respect of some of the documents on the basis they are:

Communications and information made, received, compiled or prepared for the dominant purpose of preparing for a proceeding or an apprehended proceeding, being communications between the party and other persons and communications between the party’s legal adviser and other persons in information compiled and prepared by the party or the party’s legal adviser and information compiled or prepared at the request of the party, or the party’s legal adviser, by other persons.

[3] The plaintiff says the defendants’ verified list of documents¹ contain, in part

2, the following types of documents which cannot be the subject of litigation privilege:

(a) correspondence between the legal advisers for the plaintiff and the legal advisers for the defendant;

(b) documents filed in Court;

(c) correspondence with the Court; and

(d) correspondence between persons who are not a party in the proceeding and other persons.

[4] The plaintiff does not request the Court inspect the documents listed in categories (a), (b) and (c) above, but considers that the defendants should be required

_{to list such documents in part 1, not part 2, of their verified list of documents.}

¹ Although the application refers to separate lists of documents, the only relevant list on the Court

file is a global document described as “Defendants’ Fourth Verified List of Documents”, dated

26 February 2014, but received by the Court in early April 2014. It appears to contain all the relevant documents numbered in the Schedules to the application.

[5] However, the plaintiff does request the Court inspect documents which fall into category (d) and which the plaintiff has listed in Schedules A and B to its application.

[6] In relation to the first defendants, the plaintiff says almost all of the

187 documents listed in Schedule A, and which the Court is requested to inspect, are communications from, or to, Alistair Broad (including documents copied to Alistair Broad), and file notes authored by Alistair Broad. The plaintiff goes on to say:

Alistair Broad is not:

(a) a party to the litigation;

(b) the first defendants’ legal adviser such as to qualify for privilege in terms of the definition of “legal adviser” which requires that such person holds a current practising certificate;

(c) an expert undertaking an investigation or assessment and providing a report

at the request of the party or the party’s legal adviser for the purpose of

litigation.

[7] The plaintiff also says that litigation privilege should not be claimed for documents pre-dating 16 November 2012 when the proceedings were filed against the first defendants.

[8] The request for inspection of the first defendant’s documents therefore relates

to documents which:

(a) pre-date 16 November 2012 when the plaintiff says there could be no reasonable apprehension of litigation against the first defendant; and/or

(b) were created by Mr Broad, and/or involve correspondence between Mr Broad and the defendant’s lawyers, which the plaintiff says would not, on the face of the correspondence, be subject to litigation privilege.

[9] In respect of the second defendant, the Court is requested to inspect

26 documents as set out in Schedule B. The plaintiff says the second defendant could not reasonably have apprehended litigation prior to the date the plaintiff applied to join him as a defendant, being 26 June 2013. He also raises the same concerns about litigation privilege being claimed by the second defendant for documents relating to Mr Broad.

[10] The request for inspection of the second defendant’s documents therefore relates to documents which:

(a) pre-date 26 June 2013 when the plaintiff says there could be no reasonable apprehension of litigation against the second defendant; and/or

(b) were created by Mr Broad, and/or involve correspondence between Mr Broad and the defendant’s lawyers, which the plaintiff says would not, on the face of the correspondence, be subject to litigation privilege.

[11] In summary, the two key challenges raised to the claim of privilege in the application dated 15 May 2014 are whether:

(a) litigation privilege can properly be claimed on the basis of the documents being prepared for an “apprehended proceeding”; and

(b) litigation privilege can be claimed in respect of the documents sent to and from Mr Broad or created by Mr Broad.

[12] At the telephone conference convened on 13 June 2014 to hear the plaintiff’s application, a further ground was raised to challenge the claimed privilege, being that it should be disallowed pursuant to s 67 of the Evidence Act as the documents were created or received in furtherance of a dishonest purpose.

[13] As that ground was not pleaded in the original application, and the defendants were not in a position to respond to that issue, I provided an opportunity for the

application to be formally amended and for further submissions to be made. I heard those further submissions on 7 July 2014.

Legal privilege

[14] There are two grounds of privilege that potentially apply to a number of the documents in question, being legal privilege and litigation privilege. While the defendants have relied on the latter it appears the former may also have relevance in this case.

[15] Legal privilege, or what was formerly known as solicitor/client privilege, is provided for in s 54 of the Evidence Act. It allows a person to claim privilege in respect of any communication between a person and his or her legal adviser if the communication was intended to be confidential and was made in the course of, and for the purpose of, the person obtaining professional legal services from his or her legal adviser. There is no requirement for litigation to be in contemplation, or for the advice to be given for the dominant purpose of preparing for the litigation.

[16] Importantly, under s 51(4), such communications are also privileged if carried out between an authorised representative of either the client and/or the legal adviser. As I discuss further on, Mr Broad was authorised by the defendants to act as their representative, and as a consequence, there appears to be an alternate basis on which a claim for privilege could be made in respect of communications between Mr Broad and the defendants’ legal team.

Litigation privilege

[17] However, the defendants’ claim for privilege is described in terms of litigation privilege, which is relevantly defined in s 56(1) and (2) of the Evidence Act as follows:

56 Privilege for preparatory materials for proceedings

(1) Subsection (2) applies to a communication or information only if the communication or information is made, received, compiled, or prepared for the dominant purpose of preparing for a proceeding or an apprehended proceeding (the proceeding).

(2) A person (the party) who is, or on reasonable grounds contemplates becoming, a party to the proceeding has a privilege in respect of—

(a) a communication between the party and any other person:

(b) a communication between the party's legal adviser and any other person:

(c) information compiled or prepared by the party or the party's legal adviser:

(d) information compiled or prepared at the request of the party, or the party's legal adviser, by any other person.

(3) ...

[18] The decision in Guardian Royal Exchange Assurance of New Zealand Ltd v Stuart,² is still the leading authority on litigation privilege in New Zealand and the principles articulated in that case continue to apply under s 56.³

[19] That case concerned a claim that a fire assessor’s reports prepared for an insurance company were legally privileged. The reports were prepared prior to the claimant issuing his claim against the insurance company and before the insurance company had made an unequivocal decision to decline the claim.

[20] The test for determining whether the assessor’s reports were legally

privileged was articulated by Cooke J as follows:⁴

... when litigation is in progress or reasonably apprehended, a report or other document obtained by a party or his legal adviser should be privileged from inspection or production in evidence if the dominant purpose of its preparation is to enable the legal adviser to conduct or advise regarding the litigation.

[21] The Court’s decision acknowledged that communications between a client and his legal adviser for the purpose of obtaining legal advice were “sacrosanct”, and therefore attracted privilege, except where a dishonest purpose was involved. However, where privilege is claimed in relation to communications with third parties, such as for the purpose of obtaining expert reports, then competing

_{considerations arose. In such cases the “dominant purpose” test struck the}

² _{Guardian Royal Exchange Assurance of New Zealand Ltd v Stuart [1985] 1 NZLR 596 (CA).}

³ Carter Holt Harvey v Genesis Power Ltd (No 7) HC Auckland CIV-2001-404-1974,

6 May 2008.

appropriate balance between the relevant public interest considerations of ensuring a client could frankly disclose material to his or her lawyer to obtain full professional help in litigation, while also facilitating disclosure of relevant evidence.

[22] Litigation privilege is a necessary adjunct to our adversarial system. As was said by Asher J in R v King:⁵

This privilege rests on the concept that a potential defendant should be able to seek evidence and prepare the case without being obliged to disclose the material created to the opponent.

[23] Unless the communication or information is also legally privileged, then litigation privilege is strictly confined to communications made, or information compiled, in order to prepare evidence to advance or defend litigation.

[24] Where there is a disputed litigation privilege claim, the Court in Guardian Royal Exchange held that “in general a Judge who is in any real doubt and is asked by one of the parties to inspect should not hesitate to do so”.⁶ It has been of assistance, therefore, that the defendants have provided the Court with a number of the documents listed in Schedules A and B of the plaintiff’s application. This has allowed me to determine whether certain categories of documents are properly the

subject of a claim for litigation privilege, or could otherwise be withheld from inspection.

When was the litigation reasonably apprehended?

[25] The litigation is an action to recover from the defendants the sum of

$740,000 plus interest in the liquidation of James Developments Limited. The plaintiff says this sum was lent by the company to the first defendants but was wrongfully “recoded” in the relevant accounts as loans to the second defendant and another entity and repaid to them prior to the liquidation of the company in July

_2009.

⁵ R v King [2007] 2 NZLR 137 (HC) at [20].

[26] The plaintiff says that litigation privilege could not properly be claimed by the first defendants before 1 February 2013, which is just before the first defendants filed their defence to the proceedings denying liability on limitation grounds, or, more generously, on or shortly after 16 November 2012 when the proceedings against the first defendants were filed.

[27] In relation to the second defendant, the plaintiff says that litigation was not reasonably apprehended until 26 June 2013 which is when the plaintiff applied to join the second defendant.

[28] In response, the defendants say that litigation was in contemplation as early as 2009 to 2010 because:

(a) Mana Property Trustee Limited had filed a claim in the liquidation for

$1,720,260.09 on 29 July 2009;

(b) the original liquidator asked specific questions about the $740,000 around August 2010;

(c) interviews were conducted by counsel for the plaintiff with the representatives of the first defendants and the second defendant in May and June 2012; and

(d) an application to set aside voidable transactions was served on the second defendant in July 2011.

[29] In my view, the plaintiff takes too strict a view of when litigation was reasonably apprehended by the defendants.

[30] Even before inspecting the documents it seemed likely to me that, at least from 8 June 2012 when the liquidator wrote to the first defendants seeking repayment of the $740,000, litigation was reasonably apprehended by both defendants. That view was borne out by inspection of the documents. The defendants clearly apprehended litigation by 31 May 2012, after the liquidator had commenced questioning the defendants, as emails created on this date set up a

meeting with the defendants’ lawyers and, on 1 June 2012, an email about the meeting makes an obvious reference to apprehended litigation.

[31] I am therefore satisfied that, from 31 May 2012, litigation was apprehended by both defendants. That, of course does not address the “dominant purpose” test, but that will be addressed separately.

Do documents sent to or from Alistair Broad or created by Alistair Broad attract litigation privilege?

[32] It is accepted that Alistair Broad is not a party to the litigation and, despite his legal qualifications and experience, he does not currently hold a practising certificate. His communications cannot therefore attract privilege on the basis he is the defendants’ legal adviser.

[33] He is also not an expert undertaking an investigation or assessment and providing a report at the request of either the defendants or the defendants’ legal advisers for the purpose of litigation.

[34] The defendants, and Mr Broad, say they rely on Mr Broad’s assistance falling within the scope of s 56 of the Evidence Act because the documents in question were “made, received, compiled, or prepared for the dominant purpose of preparing for a proceeding or an apprehended proceeding” and they fall within the scope of s 56(2).

[35] In his 6 June 2014 affidavit, Mr Broad deposes that he had assisted the second defendant in the past by conducting his business affairs under an enduring power of attorney in 2006, and says:

... [t]hat the Frongopolus Trust and Chris James ... would be the subject of these proceedings brought by the liquidator of James Developments Limited have always been within the Defendants’ and my contemplation since James Developments Limited went into liquidation on 6 July 2009 and certainly since the current liquidator was appointed on 25 November 2010.

[36] Mr Broad was formally engaged by the defendants to assist them in relation to the proceedings. A letter of engagement is dated 6 June 2012 and he explains that his expected role “involves interaction with counsel and the solicitors and one of my

responsibilities was to meet and provide background information and documents to current counsel”. He says he regarded himself as being “squarely within” the provisions of s 56 of the Evidence Act.

[37] He goes on to say that:

... so that the Court can be wholly satisfied as to the position we have taken, annexed to this affidavit and marked “A” is a bundle of documents taken from the documents held by me for the purpose of this case, over which litigation privilege is claimed and which are sought by the Plaintiff to be inspected by the Court (see Schedules A and B to the Plaintiff’s application). I have not included correspondence between the solicitors and counsel for the Defendants, Mr James, and me, which on any view must be privileged.

That exhibit has been provided to the Court, but not to the plaintiff.

[38] Having reviewed the documents which have been provided in exhibit A (which represent approximately a third of the documents listed in Schedules A and B), I am satisfied that Mr Broad was authorised by the defendants to assist them in this litigation and other related issues. However, the letter dated 6 June 2012 engaging Mr Broad is brief, and does not clearly spell out his role, and a better idea of his role in the litigation is obtained from reviewing the correspondence which he subsequently sent and received.

[39] That correspondence reveals that he is, for all practical purposes, standing in the shoes of the defendants to liaise with the defendants’ legal team on behalf of the defendants and to report back to the defendants. The defendants’ legal team clearly treat him as the authorised representative of the defendants, and he is privy to, or acts as a conduit for, legal advice given by the defendants’ lawyers, and/or information provided to the defendants’ lawyers for the purpose of preparing for the litigation. Indeed his role as the defendants’ representative appears to be acknowledged by the plaintiff’s counsel when she emailed him on 23 October 2012 in response to a

“proposal from Chris James/Frongopolus Trustees [presented] through you”.⁷

[40] Having reviewed the documents, I am clear that a large number of them are

_{privileged because Mr Broad is “an authorised representative” of the defendants as}

⁷ Document 3.94 listed in Schedule A of Plaintiff ’s application.

defined in s 51(4), and the documents and information compiled by him, or received or sent by him from or to the defendants’ legal team, are covered primarily by legal privilege but also by litigation privilege. To disclose these documents would, in effect, deny the defendants themselves the benefit of legal privilege.

[41] However, it is also clear that Mr Broad’s role goes further than being an authorised representative of the defendants when communicating with the defendants’ lawyers, or being a person assisting the defendants in preparing evidence for apprehended litigation.

[42] Having regard to the rationale for litigation privilege, as articulated in [22] above, I do not think all of Mr Broad’s communications with third parties attract litigation privilege. Communications which might be tangentially related to the litigation because, for example, they might achieve an outcome which means the litigation will not proceed, do not attract litigation privilege. Where Mr Broad was engaged in exploring strategic options with third parties which might avoid litigation, or render the fruits of any litigation worthless, such communications do not attract litigation privilege.

[43] I consider the plaintiff has properly queried whether Mr Broad’s communications with the Central Otago District Council, and with the ASB Bank, enjoy litigation privilege. In my view they cannot. While they may have been pursued for strategic reasons relevant to the litigation, they are not for the purpose of gathering evidence or otherwise preparing for the proceeding.

[44] Thus, the letter from Mr Broad to the Central Otago District Council dated

5 November 2012,⁸ an email between Mr Broad and Chris James on the subject of loans,⁹ and an email from Mr Broad to the ASB Bank,¹⁰ do not fall within the scope of litigation privilege and should be made available for inspection.

[45] There are also other documents supplied in Exhibit A to the affidavit of

_{Alistair Broad which do not attract privilege. It appears that the defendants have}

⁸ _{Document 3.118 listed in Schedule A of Plaintiff ’s application.}

⁹ _{Document 3.81 listed in Schedule B of Plaintiff ’s application.}

¹⁰ Document 4.182 listed in Schedule B of Plaintiff ’s application.

simply listed everything in the files kept by Mr Broad in Part 2 of their verified list on the basis that they prima facie attract litigation privilege but then add an explanatory note to Part 2 which says:

The files kept by Mr Broad relating to this proceeding have been disclosed in their entirety. Accordingly the list below includes certain documents which have been disclosed in the defendants’ earlier discovery or will already be in the plaintiff’s possession or are documents of public record.

[46] In my view that is not satisfactory. It means that, inevitably, litigation privilege has been claimed in relation to documents which are not privileged. It forces the recipient of the list of documents to cross-reference them against the documents provided in part 1 of the list to try and determine which have been disclosed and provided for inspection, and which have not.

[47] As Osborne AJ explained in Vanda Investments Ltd v Logan,¹¹ the purpose of the current High Court discovery rules as they apply to privileged documents is to “enable the opposite party to identify the documents claimed to be privileged” and to “enable that party to meaningfully consider a challenge to the claim of privilege”.¹²

In other words there is an obligation on the party providing discovery to ensure only those documents which do attract privilege are listed in part 2, and that the basis of the privilege claimed in respect of each document is clearly articulated. That has not happened in this case.

[48] In respect of the documents I have inspected I consider the following categories of documents do not attract privilege:

(a) documents 3.7 and 3.8 are communications and records of communications between the defendants and Mr Broad which pre- date the litigation and cannot be said to have preparation for

_{apprehended litigation as their dominant purpose;}

¹¹ _{Vanda Investments Ltd v Logan HC Dunedin CIV-2009-412-219, 27 November 2009.}

¹² At [48].

(b) document 3.14 being the letter of engagement, and 3.81, an email regarding loans, which do not have, as their dominant purpose, preparing for apprehended or actual litigation;

(c) there are a number of documents which are simply copies of documents that have clearly been available to the parties and in respect of which privilege should not have been claimed. These include the proof of debt forms (3.35 and 3.36), copies of resolutions and financial accounts (4.144, 4.150 and 5.274) and memoranda of counsel (4.190); and

(d) there are letters to the lawyers on the other side and to third parties which do not obviously attract litigation privilege. These include communications within the email chain in document 3.38 and 3.39, comprising emails from Mana Property Trustees lawyers to the defendants’ lawyers, documents 3.118 and 4.182 to the Council and the ASB Bank which I have already discussed, letters from IML the previous liquidators (3.127 and 4.192), and letters to and from the plaintiff (3.128 and 3.130). Potentially in this category is a chain of emails comprising documents 3.82 – 3.85 and 3.87 and 3.94 between the plaintiff’s and the defendants’ lawyers. Some emails within the chain are marked without prejudice and it is possible that the whole chain of emails is intended to be without prejudice, but if this is the base of the claimed privileged then it should properly be recorded as this.

[49] Document 3.21 is an interest calculation. On the face of it, it appears innocuous, but I cannot rule out that it has been prepared by the defendants’ advisers for the purpose of preparing evidence. If so, it would attract litigation privilege. However, equally, it may have come from the plaintiff and in such case it would not attract privilege.

[50] In short, there is substance to the plaintiff ’s concerns that litigation privilege

has been improperly claimed. There has been a global claim for litigation privilege

in respect of Mr Broad’s files when the defendants were obligated to undertake a more rigorous assessment of which documents were privileged and why.

Is s 67 of the Evidence Act relevant?

[51] I heard further submissions from the parties as to whether s 67 of the Evidence Act was relevant. The common law has long accepted that it is not in the interests of justice to protect documents which are made in furtherance of a dishonest purpose. This applies to both legal advice privilege and litigation privilege.¹³

[52] Section 67(1) of the Evidence Act enshrines this common law principle in statute. In Cityside Asset Pty Ltd and Anor v 1 Solution Ltd,¹⁴ Woodhouse J explained the dishonest purpose exception as follows:¹⁵

A dishonest purpose encompasses things less than, as well as different from, an offence. Also, as the legislature has chosen to use the expression “dishonest purpose”, rather than “fraud”, or the composite expression “fraud, sham or trickery”, it is reasonable to conclude that the legislature was intending to cover any dishonest purpose not just those particular types of dishonest purpose.

[53] Woodhouse J went on to cite, with approval, the Privy Council decision in Royal Brunei Airlines SDN BHD v Tan,¹⁶ which set out an objective test for what constitutes a dishonest purpose:

Acting dishonestly, or with a lack of probity, which is synonymous, means simply not acting as an honest person would in the circumstances. This is an objective standard.

[54] In the present case the plaintiff says that the litigation privilege is not properly claimed and the privilege should be disallowed for reasons of the public interest. The plaintiff’s submissions refer to his pleadings which assert that the defendants altered the accounts of James Developments Limited and the Frongopolus Trust, to conceal an asset of the company, being the $740,000 lent to

_{the Trust, to defeat the plaintiff’s entitlement. He also asserts that Mr Broad was a}

¹³ Kuwait Airways Corporation and Iraqui Airways Company (No 6) [2005] 1 WLR 2734 (CA) at

_[24].

¹⁴ _{Cityside Asset Pty Ltd and Anor v 1 Solution Ltd [2012] NZHC 3162.}

¹⁵ _{At [44].}

¹⁶ Royal Brunei Airlines SDN BHD v Tan [1995] 2 AC 378 (PC).

party to this action. The plaintiff also refers to the pleaded breaches of duties under the Companies Act 1993, pleaded in the substantive proceeding, saying these also demonstrate a “dishonest purpose”.

[55] The plaintiff then goes on to refer to say that this dishonest act, combined with the discovery defaults, the approach to the Central Otago District Council, and the approach to the ASB Bank by Mr Broad and the defendants: ¹⁷

... tends to show that these parties are involved in arrangements to conceal the transaction and the asset from the liquidators and prevent the plaintiff from recovering the same and/or avoidance of legal consequences. These arrangements are all part of a dishonest purpose.

Conclusion on application of s 67

[56] I have already found that the communications with the Central Otago District Council and the ASB Bank do not attract privilege and must be made available for inspection. This is because they are not covered by either legal privilege, nor can they be said to be communications with third parties “for the dominant purpose of preparing for litigation”.

[57] Leaving aside those and the other documents which I have held do not attract privilege, the balance of the documents are communications and records of communications between the defendants’ lawyers and the defendants and/or their representative Mr Broad, for the purpose of giving or receiving legal advice after these proceedings were reasonably apprehended.

[58] It is not clear why the plaintiff considers these should be connected to the original allegation of “concealing” the $740,000. That transaction, however it is to be characterised, took place a number of years earlier, the documents which give effect to that transaction have been identified, and I see no reason to taint the legal advice given in relation to the ensuing litigation, with any alleged dishonest purpose relating to that original action. Furthermore, none of the documents I have inspected in Exhibit A could be described as furthering the alleged dishonest purpose of

_{“concealing” the $740,000.}

¹⁷ Plaintiff ’s submissions dated 19 June 2014 at [19].

[59] In summary, in respect of the documents where I consider privilege may still be validly asserted (whether litigation privilege, legal privilege or without prejudice privilege), I can see no basis for disallowing that privilege on the basis of dishonest purpose.

Do I need to inspect further documents?

[60] I have had the advantage of a considerable number of the documents being made available for inspection. These include, critically for the plaintiff, the communications with Central Otago District Council and the ASB. I have determined that those documents are not subject to litigation or legal privilege.

[61] The defendants claim that the documents which I have not inspected comprise “correspondence between the solicitors and counsel for the defendants, [and] Mr James and Mr Broad which on any view must be privileged”. Given my findings at [43] – [50] above, I concur. I therefore do not intend to inspect any further documents, except if that is requested pursuant to the directions made below.

Outcome

[62] The plaintiff has been partially successful in its application, in that I have inspected a selection of the documents and have determined that privilege has been incorrectly claimed in respect of some of the documents.

[63] I see no reason to inspect further documents if, as the defendants say, they fall within the description of “correspondence between the solicitors and counsel for the defendants and Mr James and Mr Broad”.

[64] However, I direct that:

(a) the defendants are to provide the plaintiff with a compliant verified list of documents identifying the basis of privilege claimed for each Part 2 document and placing non-privileged documents from Mr Broad’s file in Part 1 of the list, by 31 July 2014;

(b) the defendants are to provide the plaintiff with a list of the document numbers which were provided to the Court in Exhibit A, by

31 July 2014; and

(c) I reserve leave to the plaintiff to request that the Court inspect any document that was not disclosed in Schedule A and which is not, based on its description, correspondence between the solicitors and counsel for the defendants and Mr James and Mr Broad.

[65] Costs are reserved.

Solicitors:

Whitlock & Co. Auckland

Mackay and Gilkison, Wellington