Wire by Design v Attorney-General [2014] NZHC 2834 (13 November 2014)

Last Updated: 1 December 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-1491 [2014] NZHC 2834

BETWEEN	WIRE BY DESIGN LIMITED Plaintiff
AND	THE ATTORNEY-GENERAL on behalf of THE MINISTER OF LAND INFORMATION NEW ZEALAND Defendant

Hearing:	13 November 2014
Appearances:	A H J Commons for plaintiff G J Kohler QC and J S Andrew for defendant
Judgment:	13 November 2014

(ORAL) JUDGMENT OF LANG J [on application for particular discovery]

WIRE BY DESIGN LTD v THE ATTORNEY-GENERAL [2014] NZHC 2834 [13 November 2014]

[1] In this proceeding the plaintiff seeks damages against the defendant in respect of the delay in completing a fit-out of premises to which the plaintiff agreed to be relocated.

[2] I was asked today to deal with an application for particular discovery by the plaintiff. During the course of the hearing counsel were able to resolve all outstanding issues between themselves, with one exception. I record in particular that counsel for the defendant has now made arrangements for the plaintiff’s advisers to informally inspect all of the files held by Octa Associates Limited.

[3] The exception to which I have referred relates to the source documents underlying Document 224 in the bundle of documents tendered for the purposes of today’s hearing. That document is headed “Compensation Model Summary”, and was evidently sent by the defendant’s solicitors to the plaintiff’s counsel with an email on 29 November 2010. The summary was prepared by Opus, the defendant’s consultant in relation to the fit-out.

[4] The summary contains a schedule of “one-off costs” relating to the fit-out, as well as dates upon which the defendant anticipated the costs would be incurred. This shows that the final expenditure in relation to the fit-out of the property was to be incurred in March 2011. In fact the work was not completed until the end of July

2011.

[5] The plaintiff will allege that the summary amounted to a representation by the defendant that the fit-out would be completed no later than March 2011. It says that the representation was false or misleading, because the defendant must have known when it prepared the summary that it could never complete the fit-out by that date. The plaintiff seeks access to the defendants’ source documents in relation to the summary to assist it to establish that the defendant knew when it prepared the summary that the fit-out could not be completed by March 2011.

[6] The defendant contends that all relevant documents have been discovered, and that there are no documents on the Opus file that have not been discovered. I accept this statement so far as it goes, but during the hearing today junior counsel for

the defendant, who has sworn an affidavit in opposition to the present application, confirms that the plaintiff’s advisers have not made any specific search for the source documents underlying Document 224.

[7] I accept that source documents of the type sought by the plaintiff may be relevant to the plaintiff’s claim because they may tend to establish whether or not the defendant was justified in representing that the fit-out would be completed by March

2011. At present, however, I am entitled to proceed on the basis that the defendant has provided evidence on oath to the effect that all of the documents that are on the Opus files have been discovered. There is no corresponding affidavit by the plaintiff stating expressly that the defendant has not provided any source documents for Document 224.

[8] In order to bring this issue to a conclusion, I make the following orders:

a) The plaintiff is to file and serve a further affidavit by a person who has personally viewed all of the documents discovered by the defendant to confirm that the plaintiff has not received any of the source documents underlying Document 224. The plaintiff should also list in that affidavit any signed copies of contracts it may hold in relation to the fit-out work carried out on the new premises by contractors it engaged for that purpose.

b) The defendant is to provide a further affidavit within 21 days of receiving the plaintiff’s affidavit confirming that Opus holds no further documents in relation to Document 224 or, alternatively, drawing the plaintiff’s attention to documents that have already been discovered by the defendant in relation to Document 224. Any new documents that the defendant discovers during its review of the Opus documents should also be listed in the affidavit.

Outstanding interlocutory issues

[9] The plaintiff issued a notice seeking further particulars from the defendant regarding one aspect of the defence. It appears that the defendant does not intend to

respond to the notice, and it is likely that an application for further particulars will be necessary. It would obviously be of assistance if the application could be filed and served as soon as possible.

Trial date

[10] This proceeding has now been on foot for some time. A trial date has not yet been allocated because the discovery process was not complete. Counsel agree that it would now be of assistance for a trial date to be allocated.

[11] I therefore allocate the proceeding a trial of three weeks duration commencing on 2 June 2015. In anticipation of that hearing, I make the following pre-trial directions:

1. The plaintiff is to serve its written briefs, together with a draft index to the bundle of documents, no later than 1 April 2015.

2. The defendant is to serve its written briefs, together with a supplementary index, no later than 1 May 2015.

100. The plaintiff is to file and serve a synopsis of opening submissions, chronology and bundle of documents, no later than 21 May 2015.

[12] The date for close of pleadings is to be 15 March 2015.

Pre-trial conference

[13] The Registrar should arrange for a pre-trial conference, if possible before the trial Judge, to be held no later than 21 May 2015. Counsel should also liaise regarding whether it would be desirable to hold a conference of experts prior to the trial. That issue will need to be addressed at the pre-trial conference on 21 May

_2015.

Lang J

Solicitors:

Schnauer & Co, North Shore City

Crown Law, Wellington

Counsel:

A Commons, Auckland