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High Court of New Zealand Decisions |
Last Updated: 10 August 2015
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2014-485-710 [2015] NZHC 1770
BETWEEN
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CARL WILLIAM FRICKLETON
Plaintiff
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AND
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STAG TRADING LIMITED First Defendant
MARK FRICKLETON Second Defendant
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Hearing:
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29 July 2015
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Counsel:
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J R Grace for the Plaintiff
M Freeman for the Defendant
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Judgment:
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29 July 2015
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ORAL JUDGMENT OF ASSOCIATE JUDGE SMITH
[1] The plaintiff filed an interlocutory application on 12 May
2015 seeking further discovery of numerous categories
of documents. After the
application was filed, there have been further amended pleadings, and Mr Mark
Frickleton has been added
as a second defendant.
[2] There has also been ongoing additional discovery provided by the
defendants, and a number of the original disputed discovery
categories have now
been resolved.
[3] The outstanding items in respect of which the plaintiff still seeks
discovery are the following:
(a) Documents from the Defendants’ former accountant, Aaron
Humphries, regarding the debt.
(b) Current account statements since 31 March
2011.
CARL WILLIAM FRICKLETON v STAG TRADING LIMITED [2015] NZHC 1770 [29 July 2015]
(c) Documents relating to all the prosecutions and complaints to
the
Motor Vehicle Dealers Institute involving Mark Frickleton.
(d) Documents relating to all court proceedings in which Mark Frickleton has
been found to have committed fraud.
[4] In respect of the last two of the above categories, I am advised
that they did not form part of the plaintiff ’s original
discovery
application. Mr Freeman contends that they are irrelevant, and he opposes any
amendment to the existing application to
allow the plaintiff to pursue a further
discovery application in respect of them. Mr Grace accepts that these two
categories go
only to issues of credibility, and are not directly relevant to
any issue disclosed in the pleadings. In those circumstances, I
am not inclined
to allow any amendment to the interlocutory application to include these
documents. If and to the extent
that the plaintiff wishes to pursue
an application in respect of these two categories, a further interlocutory
application
will have to be made. The issue of the relevance of these documents
can be considered if and when any such application is made.
[5] Disclosure of the first category of documents listed above is
resisted by the defendants on the basis that they have
no such
documents in their control. Mr Mark Frickleton has sworn an affidavit to that
effect, and Mr Grace has been unable
to point to evidence establishing that the
documents are or may be in the defendants’ control. In those
circumstances, I think
Mr Frickleton’s affidavit must be treated as final
on the point, at least in the absence of evidence that such documents exist
and are in the defendants’ control. The defendants and their
solicitors will be well aware of their ongoing obligations
to the Court and to
the plaintiff in the event that any such documents may be located in the future.
The application is dismissed
insofar as it relates to this category.
[6] The remaining category of documents is the current account
statements since
31 March 2011. Mr Freeman has undertaken to check with his client if such documents exist. He advises that there should be no difficulty in providing these documents if they do. In those circumstances, the sensible course is to adjourn this aspect of the application, to be brought back on for hearing if a determination in
respect of it is necessary. Leave is accordingly reserved to the plaintiff
to apply by memorandum for a fixture to hear the application
insofar as it
relates to the current accountant statements since 31 March 2011.
[7] Costs on the application are reserved.
Associate Judge Smith
Solicitors:
Jefferies Raizis, Wellington for the plaintiff
Thomas Dewar Sziranyi Letts, Lower Hutt for the defendants
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URL: http://www.nzlii.org/nz/cases/NZHC/2015/1770.html